MZWQU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 194

FEDERAL COURT OF AUSTRALIA

MZWQU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 194 MZWQU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL VID 1013 OF 2006 NORTH J 13 FEBRUARY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWQU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 13 FEBRUARY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: (1) The appeal is dismissed; (2) The appellant pay the first 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 1013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWQU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: NORTH J

DATE: 13 FEBRUARY 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate McInnis delivered 19 July 2005. McInnis FM dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 August 2004. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the first respondent, not to grant the appellant a protection visa. The appeal is heard by a single judge, pursuant to a direction given by the Chief Justice, under s 25(1) (a) of the Federal Court of Australia Act 1976 (Cth), on 10 February 2006. 2 The decision of the Tribunal sets out the detailed facts so they need not be repeated at length. The essential facts necessary to understand the appeal are as follows. The appellant is a Chinese national who claimed a fear of persecution on two grounds, first, by reason of his father's political background, which involved criticism of the Chinese Government and, second, his belief in Falun Gong which began in 2001, when he was already in Australia. 3 The appellant came to Australia as a student in October 2000, and returned to China on visits in December 2000 and June 2001. On 11 July 2002 the appellant's student visa was cancelled and he unsuccessfully appealed to the Migration Review Tribunal against the cancellation. The appellant then launched an appeal in the Federal Court against the unsuccessful appeal to the Migration Review Tribunal, which he later withdrew in April 2003. In its decision, the Tribunal recorded in detail what occurred at the hearing before it. Relevantly for the appeal, the Tribunal said at p 10-11: The Tribunal asked the applicant about his student visa. He said it was cancelled by the department and he had unsuccessfully appealed to the Migration Review Tribunal, ("MRT") and then to the Federal Court. The Tribunal said it was aware of those applications, and had read the decision of the MRT after his hearing on 10 December 2002. The applicant, in response to a Tribunal question, indicated he had withdrawn his appeal to the Federal Court because he wanted to follow up a protection visa, because of his Falun Gong association. The Tribunal observed that the MRT decision did not reveal any mention at all of Falun Gong association or fear of persecution, and noted his MRT hearing was about two weeks before the time he says he formally set up the YGFD. It also observed the MRT decision recorded him as saying that if his student visa was not re instated, "his parents will have wasted his course fees, his career plans would be destroyed, and he would not be able to get a good job in China". The Tribunal observed this would have been an opportunity for him to have raised any concerns about returning to PRC because of Falun Gong, if he had such fears. In response, he indicated he did not raise his fears at that time because he was only interested in getting his student visa re instated, and if he got it he would be able to continue studies and his practice of Falun Gong. In the next section of its decision, the Tribunal went on to survey in detail the country information concerning Falun Gong, and the treatment of its followers, and a number of other issues. 4 The Tribunal's findings and reasons were recorded in the final section of its decision. First, it rejected the appellant's claim based on his father's political involvement. There is no contention on the appeal about this part of the reasons. Then the Tribunal turned to the appellant's activities in Australia, and recorded the following conclusions at p 21-22: This leaves the issue of the applicant's activities in Australia. Whilst the Tribunal does not accept the applicant's evidence on a number of issues, there is material which shows the applicant has engaged in activities in Australia, which could have drawn him to the attention of PRC authorities present in this country. These consist of his involvement in a group called YGFD, and activities associated with that group and Falun Dafa generally, and his activities in publicly protesting outside the PRC consulate. Whilst the Tribunal accepts such activities may have occurred, it considers the motivation of the applicant in establishing and publicising that group and his involvement was contrived entirely for the purposes of creating an adverse profile, and for the sole purpose of strengthening his claim to need refugee status. Similarly whilst the Tribunal accepts that the applicant may have an understanding of the concepts and beliefs of Falun Gong, it is not satisfied he is in fact a genuine believer or follower of that practice. In reaching this conclusion, the Tribunal does not accept the applicant's evidence as to his own practice of Falun Gong or the reasons for the formation and involvement in a group said to be related to Falun Gong, to be credible. Having reached this conclusion, the Tribunal is also satisfied he would not practice Falun Gong if returned to PRC now or in the reasonably foreseeable future, and that the reason he would not do so is because he is not a genuine Falun Gong believer.