FEDERAL COURT OF AUSTRALIA

SZLSP v Minister for Immigration and Citizenship [2012] FCA 451

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court of Australia on 6 May 2011 be set aside.

3.    There be substituted for those orders, orders that:

(i)    a writ of certiorari issue directed to the second respondent, removing into this Court the decision of the second respondent dated 30 December 2010, in case number 1008613, for the purpose of quashing that decision;

(ii)    the decision of the second respondent, dated 30 December 2010 in case number 1008613, be quashed;

(iii)    a writ of mandamus issue, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellants for review of the decision of a delegate of the first respondent to refuse to grant the appellants protection visas; and

(iv)    that the second respondent be differently constituted when obeying the writ of mandamus issued under Order 3(iii).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

INTRODUCTION

1        This is an appeal from a judgment of a Federal Magistrate published as SZLSP v Minister for Immigration [2011] FMCA 346, in which the Federal Magistrate dismissed the appellants’ application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the delegate”) not to grant the appellants a Protection (Class XA) visa (“Protection visa”).

2        The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellants was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3        The task of this Court is to determine whether the judgment of the Federal Magistrate who determined the appellants’ judicial review proceedings is affected by appealable error.

4        For the reasons that follow, I have determined to allow the appeal and require that the Tribunal reconsider the appellants’ application for review of the decision of the delegate to refuse to grant the appellants Protection visas.

BACKGROUND

5        The appellants are a married couple and are citizens of the Peoples Republic of China (“PRC”). The appellants claim they fear persecution in the PRC on the basis of the first appellant’s alleged adherence to Falun Gong. The appellants’ claim they fear persecution and harm for Convention related reasons, namely their religion and their membership of a particular social group. The Convention to which I refer is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

6        The first appellant claims to have been a Falun Gong practitioner and organiser in the PRC since before 1996. In 2003 whilst he was at his workplace practising Falun Gong before work with three colleagues, he claims the police broke in and took him and his colleagues to the police station where he was assaulted. After admitting to being a Falun Gong organiser, the first appellant claims he was detained for three days, hit with an electric rod, and forced to sign a statement guaranteeing he would not continue practising Falun Gong. He claims he was also arrested at a later date for protesting at a police station about the detention of another Falun Gong practitioner. After he was released, he claims he did not practice Falun Gong further, but instead he printed ‘publicity materials’ secretly which were critical of the Communist Party and which he distributed with other Falun Gong practitioners. The second appellant claims she too was assaulted by police when they visited her house and told to distance herself from and divorce the first appellant. The appellants claim that, as a result of the first appellant’s Falun Gong practice, they were dismissed from their employment and subsequently escaped from the PRC.

7        The appellants’ application for a Protection visa has a considerable history. The appellants arrived in Australia on 7 April 2007. Soon after, the first appellant applied to the Department of Immigration and Citizenship for a Protection visa, and the second appellant made her application as a family member of the first appellant. The delegate refused those applications. The appellants then applied to the Tribunal for a review of the delegate’s decision. A hearing was conducted before the Tribunal and on 7 November 2007 the Tribunal decided to dismiss the application for review.

8        The appellants then made an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. A hearing was conducted before a Federal Magistrate in which the Federal Magistrate dismissed the application. The reasons for judgment are published as SZLSP v Minister for Immigration and Citizenship [2008] FMCA 950. The appellants then appealed to the Federal Court for judicial review. In that proceeding the first respondent (“the Minister”) conceded that the Tribunal’s decision was affected by jurisdictional error because the Tribunal had failed to deal with some of the appellants’ claims. On 4 November 2008, McKerracher J made consent orders allowing the appeal, setting aside the orders of the Federal Magistrate and issued writs of certiorari and mandamus. His Honour remitted the matter for reconsideration before the Tribunal.

9        A reconstituted Tribunal held another hearing at which the appellants appeared. On 13 February 2009 the Tribunal refused the appellants’ application for review thereby affirming the decision of the delegate not to grant Protection visas. The appellants filed an application in the Federal Magistrates Court for review of that decision. The Federal Magistrate issued writs of certiorari and mandamus and remitted the matter to the Tribunal: SZLSP v Minister for Immigration and Citizenship [2009] FMCA 932.

10        The Minister appealed the Federal Magistrate’s decision and on 3 September 2010 a Full Court of this Court dismissed the Minister’s appeal: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (Kenny and Rares JJ with Buchanan J dissenting) (“SZLSP”). I will return to consider the reasons for judgment of the Full Court when dealing with relevant legal principles.

THE TRIBUNAL’S MOST RECENT DECISION

11        The appellants attended and gave evidence at a hearing before the Tribunal on 1 December 2010. That hearing was adjourned until 15 December 2010 so the appellants could acquire further evidence regarding the first appellant’s Falun Gong activities in Australia. On 14 December 2010 the appellants’ adviser submitted a statement from the first appellant outlining details of his involvement in public Falun Gong activities in Australia. The adviser also submitted witness statements in the form of statutory declarations, from two of the three witnesses referred to in the first appellant’s statement, both of whom were Falun Gong practitioners who asserted that the first appellant was a Falun Gong practitioner. On 15 December 2010, the Tribunal heard oral evidence from the two witnesses to the same or similar effect as that given in their written statements.

12        Ultimately, the Tribunal found that although the first appellant had some limited knowledge about Falun Gong and some limited involvement with the organisation’s activities in Australia, he was not a genuine Falun Gong practitioner and had never been one in China. By a decision published on 30 December 2010 (“the Tribunal’s decision”) the Tribunal again affirmed the delegate’s decision not to grant the appellants Protection visas. I will deal with that decision in more detail later.

THE DECISION OF THE FEDERAL MAGISTRATE

13        The appellants then sought review of the Tribunal’s decision in the Federal Magistrates Court relying upon the following grounds:

1.    The Tribunal asked itself the wrong question concerning the first applicant’s claim to be a Falun Gong practitioner.

Particulars

(a)     The Tribunal Member picked random chapters from the reading materials he possessed and questioned the applicant in details [sic] according to his “standard answers”.

(b)     The Tribunal Member acted as an arbiter of religious knowledge and set up his own standard of a genuine Falun Gong practitioner based on his own texts.

2.    In that the Tribunal acted unreasonably and illogically in failing to recognize my genuine belief of Falun Gong.

Particulars

(a)    The Tribunal Member made a decision that he is not satisfied that I was a genuine Falun Gong practitioner. This is a jurisdictional fact.

(b)    The jurisdictional fact was totally illogical and unreasonable since it is based on the Member’s conclusion from his own understanding of the Falun Gong text and therefore it amounts to jurisdictional error.

14        The Federal Magistrate dismissed the appellants’ application with reasons published as SZLSP v Minister for Immigration and Citizenship [2011] FMCA 346.

15        In relation to the first ground, the Federal Magistrate noted that the evidence utilised by the Tribunal in forming its view that the first appellant was not a genuine Falun Gong practitioner, was information contained in a report by Dr Benjamin Penny made on 14 July 2006, and an instructional manual available from the Falun Dafa Organisation. At [4], the Federal Magistrate found that after having discussed the contents of these documents with the first appellant, the Tribunal concluded that, despite the evidence of the first appellant having had some involvement with the Falun Gong organisation and of having read some literature relating to it, ultimately his knowledge of the philosophy was limited. The Federal Magistrate also noted that the Tribunal was entitled to disregard the appellants’ activities in Australia pursuant to s 91R(3) of the Migration Act.

16        At [10] the Federal Magistrate reasoned that the Tribunal did not rely on its own understanding of Falun Gong but instead based its assessments of the credibility of the first appellant’s claim of being a Falun Gong practitioner upon the expert evidence of Dr Penny and evidence from the Falun Gong organisation itself. In doing so, the Federal Magistrate concluded that the Tribunal took proper precautionary steps in not setting itself up as an arbiter of religious knowledge and therefore its decision was unaffected by jurisdictional error. On that basis the Federal Magistrate dismissed ground one.

17        In relation to the second ground, the Federal Magistrate found that the jurisdictional fact was not whether the appellant was a Falun Gong practitioner, as the appellant contended, but whether the Minister could be satisfied that Australia owes protection obligations to the appellants. The Federal Magistrate reasoned that the appellants’ accusation that the Tribunal was illogical and unreasonable based upon the member’s own understanding, had been dealt with in the consideration and subsequent dismissal of ground one. Ultimately, the Federal Magistrate dismissed ground two by finding that the Tribunal came to its own conclusions based not upon its own understanding of Falun Gong, but upon the evidence that was put before it.

18        During the first appellant’s oral submissions, he made an additional claim stating that there was no evidence for the Tribunal’s finding that he would not be involved in any Falun Gong activities in Australia or China in the reasonably foreseeable future which would attract the adverse attention of the Chinese authorities. The Federal Magistrate dismissed the additional claim on the basis that it was a ‘logical step’ for the Tribunal to conclude that if he was not a genuine Falun Gong practitioner then he would be in no danger if he returned to China. The first appellant also attempted to submit additional evidence inviting the Federal Magistrate to engage in impermissible merits review, which the Federal Magistrate rightly rejected.

GROUNDS OF APPEAL IN THIS COURT

19        The appellants filed a Notice of Appeal in this Court appealing the decision by the Federal Magistrate with the following stated grounds of appeal:

1.    The Court erred in failing to find that the decision of the Refugee Review Tribunal (“The Tribunal”) was affected by jurisdictional error.

                    Particulars

(a)    The appellant wasn’t given the opportunity to explain and provide evidence why his answers about his practice of Falun Gong are genuine and not for the purpose of obtaining his refugee status.

2.    The Court erred in failing to find that the Tribunal acted as an arbiter of religious knowledge by questioning the appellant with the standards quoting from some particular text.

20        At the hearing the appellants were self-represented and assisted by an interpreter. The appellants provided written submissions which expanded upon the two grounds but which also impermissibly attempted to provide further factual material.

RELEVANT LEGAL PRINCIPLES

21        This is a case in which asylum is sought by people who claim to have been persecuted for their religious beliefs and who fear further persecution should they be deported and returned to their home country. The fundamental question in such a case is whether the person seeking asylum has a well-founded fear of persecution on the ground of his or her religious conviction. In determining that question, it may become necessary for the Tribunal to assess the credibility of the asylum seeker and do so by reference to the person’s religious conviction. For reasons that I will explain, whilst that course is not necessarily impermissible, it is an exercise which as Jacobson J said in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [25] tends to deflect attention from the real question which arises in such matters.

22        All religion is founded upon belief. Such belief is usually focused upon a supernatural power or powers. The belief will usually have a formalised system or structure which facilitates its dissemination. The extent of formalisation and the extent of diversity within formal structures may vary widely as between religions and as between different sects within a religion. There will inevitably be wide ranging and often fierce debates (sometimes wars) over what defines a particular religion and its adherents.

23        By reason of those matters and the spiritual dimension involved in religious belief, a person’s religious conviction is not easily measured, and when measured, is not likely to be properly assessed by a competency based assessment giving little or no regard to spirituality. How spirituality is to be measured is as much a mystery as spirituality itself. The extent of subjectivity involved in formulating a proper criterion and in the application of that criterion in the assessment task, is a further basis for concern. Those considerations suggest that an assessment of a person’s credibility, by reference to the measurement of his or her religious conviction, will be a questionable forensic exercise other than for relatively obvious cases of fabricated religious conviction. But more needs to be shown than that the Tribunal embarked upon an exercise of doubtful forensic value to establish jurisdictional error.

24        As earlier stated, Kenny and Rares JJ in SZLSP determined that jurisdictional error was demonstrated by the prior decision of the Tribunal relating to the appellants. That error was grounded in the way in which the first appellant was assessed as to his knowledge and belief of Falun Gong.

25        More recently, Jacobson, Buchanan and Nicholas JJ in SZOCT were also required to review for jurisdictional error an assessment made by the Tribunal in which an adverse credibility finding was made by reference to an assessment of the doctrinal knowledge of the Bible of an applicant for a Protection visa. Although Jacobson J was in dissent in the result, both he and Nicholas J agreed that the Tribunal’s conclusion based on such an assessment was erroneous.

26        In SZLSP, Kenny J (after referring to WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 and SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129) said at [37]-[40]:

[37]    These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

[38]    Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

[39]    If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.

[40]    Thus, the Minister’s submission that any consideration of the Tribunal’s finding regarding the first respondent’s knowledge should necessarily be avoided due to risks of “merits review” must be rejected. The Migration Act and the authorities clearly disclose the basis for mandated judicial review. Section 65 of the Migration Act provides that the Minister is to grant a protection visa application if he is “satisfied” that the relevant criteria have been met and deny the application if he is “not so satisfied”. However, the Minister (or the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’) at 20 [37]) is only empowered to make a determination regarding the relevant state of satisfaction where that determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: see Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 (‘SZMDS’) at 376-77 [37] –[42] per Gummow ACJ and Kiefel J (dissenting as to the application of law to facts) (citing, amongst other authorities, SGLB 207 ALR at 20-21 [37]-[38] per Gummow and Hayne JJ; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 (‘WAIJ’) at 573-74 [17]-[26] per Lee and Moore JJ 573-74 [22]; and SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [15] per Gordon J) and 388-389 [102]-[105], 393-96 [121]-[131] per Crennan and Bell JJ (citing, amongst other authorities, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (‘Avon Downs’) at 360 per Dixon J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (‘Eshetu’) at 657 [147] per Gummow J). As stated by Gummow and Hayne JJ in SGLB (207 ALR at 20 [37]-[38]):

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned. . . .

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. (Footnotes omitted)

27        The reasoning of Kenny J in SZLSP is extensively referred to and relied upon in the reasoning of Jacobson J at [8]-[10] (with whom Nicholas J relevantly agreed at [80]).

28        At [8]-[10], Jacobson J stated:

[8]    Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (“SZLSP”) at [38].

[9]    Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].

[10]    Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

29        Jacobson J identified the question that arose at [18] as follows:

Thus, the question which arises is whether the opinion reached by the Tribunal as to its state of satisfaction under s 65 of the Migration Act 1958 (Cth) was one that could be formed by a reasonable person or:

… was based on findings or inferences of fact which were not supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 657 [145]; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34].

30        His Honour noted, and I respectfully agree, that an affirmative answer to that question is not lightly to be given. In that case Jacobson J came to the view that there was no rational or logical connection between an assessment of the visa applicant’s failure to reveal particular knowledge of the Bible and the knowledge that might be expected from a person who believed in and practiced Christianity in China. His Honour stated at [24]:

The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role.

31        Having reviewed the authorities, Buchanan J in SZOCT expressed his conclusion as to the relevant principles at [50] as follows:

I take it to be established by the authorities to which I have referred that it is not impermissible, despite the observations of Gray J in Wang, for the RRT to enquire about the depth of knowledge possessed by an applicant for a protection visa when claims for the protection visa are based on the suggested likelihood of persecution for religious reasons. On the other hand, there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution. The material obtained by the RRT from its examination must not be put to use in a way which is so irrational as to suggest the absence of a proper foundation for the stated conclusions (see also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (“NADH”) at [110]-[121], [136]).

32        At [71], Nicholas J in SZOCT said:

Hence, the question is whether there was probative material from which it could logically or rationally be inferred that the respondent was not a witness of truth (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]) or, put slightly differently, whether that inference was one which no rational or logical decision-maker could draw on the same evidence (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]).

33        Nicholas J’s conclusion is found at [80] as follows:

I respectfully agree with Jacobson J that it could not be logically or rationally concluded on the basis of the Tribunal’s exploration of the respondent’s knowledge of the Bible at the Tribunal hearing that the respondent did not have a level of knowledge which might reasonably be expected of a person who had believed in and practiced Christianity in China between 2004 and 2008.

34        Central to Kenny J’s reasoning at [37] of SZLSP, is her Honour’s conclusion that for a Tribunal to proceed on the premise that all believers will have certain specific knowledge of a religion, may well fail to engage with the question of whether a particular applicant is a follower of the religion. What that reasoning (and that of the Full Court in SZOCT which adopts it) calls for is an assessment of whether or not a logical or rational connection based upon probative material, exists between an applicant’s failure to hold the specific knowledge and the knowledge that all followers of the religion may be expected to have.

35        The existence of a logical or rational connection will likely depend upon the extent of the specific knowledge required to be demonstrated. An assessment made against the most basic tenets or features of a religion, is more likely to have the requisite logical connection because knowledge of the most basic tenets or features of a religion can be expected to be held by all of its followers. But because the level of knowledge held by followers of a religion will naturally range along a spectrum from basic to sophisticated, the more the assessment moves from the basic to the sophisticated, the more likely it is that the connection between the specific knowledge and all followers will no longer be logical.

36        Additionally, once the assessment moves from the basic to the more sophisticated, the potential for diversity in the understanding, application and practice of the tenets or spirituality involved will be greater. As that diversity increases, that which may be expected of all adherents will correspondingly narrow and the logical connection will diminish and then be lost.

37        In this case, the Tribunal was not satisfied that the first appellant “has a genuine interest” in Falun Gong (at [74] and [75]). In light of that finding, the Tribunal found that the first appellant was not a genuine Falun Gong practitioner and had contrived his interest in Falun Gong to enhance his visa application (at [74]). As the Tribunal considered that the first appellant was “not a genuine Falun Gong” practitioner (at [76] and [77]), the Tribunal did not accept as credible the first appellant’s claims that he was persecuted in China because he was a Falun Gong practitioner (at [76]), and was not satisfied that he would be involved in any future Falun Gong activities in either Australia or in China that would attract interest from Chinese authorities (at [80]).

38        As the second appellant’s claims were based upon the first appellant’s involvement with Falun Gong, and given the Tribunal’s finding that the first appellant “is not and never has been a genuine Falun Gong practitioner”, the Tribunal was not satisfied that the second appellant had been or would be persecuted by Chinese authorities (at [81]). Accordingly, the Tribunal was not satisfied that there is a real chance that the appellants face persecution by the Chinese authorities for a Convention reason (at [82]).

39        It can be seen that the finding made by the Tribunal that the first appellant was not a genuine follower of Falun Gong was destructive of all of the claims made by both appellants.

40        There was no alternative basis for the Tribunal’s decision. The rejection of the appellants’ application for Protection visas was exclusively based upon the failure of the first appellant to satisfy the Tribunal that he was a genuine Falun Gong practitioner. That failure was based upon the Tribunal disbelieving the first appellant’s claim that he had a genuine interest in Falun Gong. The Tribunal identified two reasons upon which it grounded its finding that the first appellant had no genuine interest in Falun Gong, and had contrived his interest to enhance his application Firstly, if the first appellant had a genuine interest in Falun Gong he would have had a better understanding of Falun Gong’s beliefs and principles (at [74]). Secondly, if the first appellant had a genuine interest in Falun Gong he would have participated in more public Falun Gong activities in Australia than he had (at [75]).

41        The first of the Tribunal’s reasons was, as I have said, based upon the Tribunal’s assessment of the first appellant’s understanding of Falun Gong. There is no transcript of the Tribunal’s hearing before me. The following extract from the Tribunal’s decision at [59]-[65] sets out the basis for and the way in which the assessment engaged in by the Tribunal was conducted:

[59]    The Tribunal indicated to applicant 1 that Dr Benjamin Penny, an expert on China, gave a seminar to the RRT regarding Falun Gong in China and Australia (Transcript of Falun Gong Seminar, 2006, Dr Benjamin Penny at the Refugee Review Tribunal, Melbourne, 14 July). The Tribunal commented that Dr Penny stated that a genuine Falun Gong practitioner would commonly know the five Falun Gong exercises and be able to perform those exercises confidently; have some understanding of Zhuan Falun, the Falun Gong central test; and be able to describe how they apply Falun Gong’s core moral tenets of truth, compassion, and forbearance. The Tribunal indicated to the applicant that it wanted to discuss these issues with him.

[60]    The Tribunal commented that it had an instructional manual issued by the Falun Gong association, and used by practitioners, which is available at www.falundafa.org/book The Tribunal referred to Chapter II: Illustrations and Explanations of the Exercise Movements (www.falundafa.org/book/eng/dymf-2.htm ) which explains the principles which form the basis of the exercises and provides an illustration of the movements.

[61]    The Tribunal commented that it wanted to discuss with the applicant the principles of each exercise. The applicant provided details regarding each exercise, the reasons they were done, and what they achieved for the practitioner. The Tribunal commented that his interpretations of the principles of two of the exercises did not correspond with the description provided in the manual. The applicant stated that he had a different manual at home which gave a variation on the principles. The Tribunal commented that the book it was relying on was a reliable manual as it was issued by the Falun Dafa association. The applicant stated that different manuals provided different interpretations.

[62]    The Tribunal asked the applicant if he had read Zhuan Falun. The applicant stated that he read it but he could not say anything about it. The Tribunal asked the applicant to provide some information regarding the contents of the book. The applicant stated that there was nothing he could say about the contents.

[63]    The Tribunal asked the applicant to explain how he incorporated the basic tenets and beliefs of Falun Gong in his daily life. He stated that he told the truth and he helped others. He was asked to describe how he helped others. He stated that if he saw someone begging for food he would give them his last dollar. He stated that if he saw an old person crossing the street he would help them across. The Tribunal asked the applicant if his acts of kindness were random. He stated that he had no set activities relating to the three basic tenets of Falun Gong but he tried to be a good person. He was asked if he did anything more to incorporate the Falun Gong beliefs and principles in his daily life. He stated that he hoped to be involved in good deeds.

[64]    The Tribunal commented that the applicant had some knowledge of Falun Gong but his understanding of the principles and beliefs was basic. The Tribunal commented that his involvement in Falun Gong activities in Australia appeared to be minimal. The applicant stated that he was still learning and he was busy.

[65]    The Tribunal stated that it will have to consider whether applicant 1 was a genuine Falun Gong practitioner and whether he participated in Falun Gong activities because he had a genuine interest in Falun Gong or whether he went to a few events in the belief that it would assist him to get a protection visa. The applicant stated that he was a genuine Falun Gong practitioner.    

42        The Tribunal’s conclusions in relation to the assessment of the first appellant’s understanding were further set out at [74] as follows:

The Tribunal has considered the claim by applicant 1 that he is a genuine and committed Falun Gong practitioner. The Tribunal accepts Dr Benjamin Penny’s expert advice relating to Falun Gong practitioners and how to identify a genuine practitioner (Transcript of Falun Gong Seminar, 2006, Dr Benjamin Penny at the Refugee Review Tribunal, Melbourne, 14 July ). Dr Penny advised the Tribunal that a genuine Falun Gong practitioner will know the five Falun Gong exercises and perform them confidently; they will have some understanding of Falun Gong’s central text, Zhuan Falun; and they will be able to explain how they applied Falun Gong’s core moral tenets of truth, compassion, and forbearance. The Tribunal accepts that applicant 1 has had some involvement with Falun Gong and that he has read some literature relating to Falun Gong. However, after discussing Falun Gong with the applicant at the hearing, the Tribunal has formed the view that his knowledge of Falun Gong is limited. He was able to provide a general overview of the principles relating to the exercises but he appeared to miss the core reasons for two of the exercises he was unable to provide any information regarding Falun Gong’s central text, Zhuan Falun; and his understanding of the basic tenets, and how to apply them was superficial. The applicant indicated to the Tribunal that he was consulting a different book to the one the Tribunal was using. However, the Tribunal finds that if indeed the applicant has been involved with Falun Gong for almost fourteen years, and he had a genuine interest in it, he would have had a better understanding of Falun Gong’s beliefs and principles. The Tribunal accepts that applicant 1 has some knowledge regarding Falun Gong, and that he has been involved in a few activities in Australia relating to Falun Gong, but is not satisfied that he has a genuine interest in it. The Tribunal finds that the applicant has contrived his interest in Falun Gong to enhance his protection visa application.

43        It is necessary to appreciate that the assessment of the first appellant’s credibility conducted by the Tribunal through this exercise was not conducted by reference to any claim made by the first appellant as to his state of knowledge of Falun Gong. The first appellant made no specific claim about his state of knowledge of the tenets or theory of Falun Gong. He did say at the outset of the hearing (at [47]) that he was a committed Falun Gong practitioner. At the end of the assessment (at [55]) he asserted that he was a genuine Falun Gong practitioner.

44        In my view, the Tribunal’s conclusion that the first appellant is not a genuine follower of Falun Gong, was not made on probative material on which the Tribunal could logically or rationally have based that conclusion. It follows that the Tribunal’s consequent findings as to the first appellant’s credit, including that the first appellant had fabricated his claim to be a follower of Falun Gong, cannot be sustained.

45        It is evident from the extracts set out above, that the Tribunal did not proceed by reference to a general exploration of the extent of the first appellant’s knowledge of Falun Gong. The assessment of the first appellant’s knowledge or understanding made by the Tribunal was conducted by reference to specific criteria as to the competence of a genuine Falun Gong practitioner. For that purpose the Tribunal firstly relied upon a transcript of a seminar provided to members of the Refugee Review Tribunal by Dr Benjamin Penny. The content of that transcript is not in evidence but the Tribunal’s summary of what it relevantly understood from it is at [59] of its decision.

46        That summary suggests criteria which Dr Penny intended as applicable generally to a genuine Falun Gong practitioner but not necessarily to all genuine practitioners. So much is apparent from the Tribunal’s description of Dr Penny’s characterisation of the criteria as that which a genuine Falun Gong practitioner “would commonly know”. The somewhat sophisticated rather than basic level at which the criteria are pitched, is suggested by their content and seems to be confirmed by the Tribunal’s acceptance of the first appellant’s understanding as “basic” (at [64]) but not sufficient to satisfy Dr Penny’s criteria. That the criteria were pitched at that higher level also suggests that they were intended as a general rather than a universal standard to be expected of all Falun Gong practitioners.

47        However, when the Tribunal came to apply Dr Penny’s criteria at [74], it characterised the criteria differently than it had initially. At that point, the criteria were characterised as absolute standards rather than what a genuine Falun Gong practitioner would commonly know. As a result, the Tribunal assessed the first appellant’s knowledge against what a genuine Falun Gong practitioner “will know” and not what a genuine Falun Gong practitioner “would commonly know”.

48        The application of a standard of common frequency, as though it were a universal standard of absolute applicability to all Falun Gong practitioners, involves illogicality. Once the Tribunal moved from Dr Penny’s criteria of what a Falun Gong practitioner would commonly know, to its own absolute standard of what a Falun Gong practitioner “will know”, the Tribunal’s finding about the first appellant’s knowledge could no longer be said to be grounded upon Dr Penny’s advice. Instead, the finding was, at least in part, founded upon the Tribunal’s own view unsupported by probative material.

49        The same conclusion applies to the way in which the Tribunal at [61] and [74] dealt with the first appellant’s knowledge of the five Falun Gong exercises. In relation to that knowledge, the Tribunal did not assess the first appellant’s knowledge by reference to information provided by Dr Penny, but did so by reference to an instructional manual which it initially described as being issued by the “Falun Gong association” (at [60]) and available from its website, and later described as “issued by the Falun Dafa association” (at [61]).

50        The Tribunal determined that the first appellant’s interpretation of two of the five Falun Gong exercises, did not correspond with the description provided in the instructional manual. The first appellant gave evidence that there are different instructional manuals which provide different interpretations of the exercises and stated that he had an alternative instructional manual at home which varied from the instructional manual being used by the Tribunal.

51        Despite the fact that the Tribunal could have readily tested the veracity of the first appellant’s evidence as to the existence of other instructional manuals (and in particular the manual said to be held by the first appellant at his home), the Tribunal proceeded on the basis that there was only one interpretation of the exercises which was authoritative. Whilst the Tribunal was entitled to consider (as it did at [61]) that the instructional manual it relied upon was “a reliable manual”, the Tribunal had no basis for conducting its assessment of the first appellant’s knowledge on the premise that there was no other authoritative interpretation of the Falun Gong exercises. There was no probative material before the Tribunal from which it could have concluded that the only interpretation of the five Falun Gong exercises which all Falun Gong practitioners would know, was that contained in the instructional manual it was using.

52        Nor was there probative material upon which the Tribunal could ground its second reason for its conclusion that the first appellant was not a genuine Falun Gong practitioner. The Tribunal’s reasoning in this regard is at [75] and [76] of its decision.

53        The evidence before the Tribunal which it appears to have accepted was that the first appellant practised Falun Gong at home in the evenings after work. The Tribunal thought that the first appellant’s evidence about his public involvement with Falun Gong activities whilst in Australia was vague but accepted that he had been involved in some Falun Gong activities and had attended some of the big annual events. The Tribunal concluded that the first appellant “has had only limited involvement in organised or public Falun Gong activities”. On that basis, the Tribunal concluded that the first appellant did not have a genuine interest in Falun Gong and was not a genuine Falun Gong practitioner.

54        There is a logical connection between a genuine adherent to a religion and the extent to which a person practices or otherwise involves him or herself in the activities organised by that religion.

55        However, the Tribunal’s conclusion that a genuine Falun Gong practitioner could be expected to participate in public Falun Gong activities to a greater extent than the first appellant had, is not based on any identified or apparent material probative of what may be expected of a genuine Falun Gong practitioner. The Tribunal’s conclusion was not based on Dr Penny’s advice. The Tribunal seems to have simply come to its own conclusion, in the absence of probative material, as to what level of public participation in Falun Gong activities may be expected of a genuine Falun Gong practitioner.

56        There are therefore three considerations which led to the Tribunal’s conclusion that the first appellant is not a genuine follower of Falun Gong which were not grounded in probative material. In relation to each such consideration, the Tribunal impermissibly cast itself into the role of arbiter of the level or kind of knowledge, or the level of participation, that may be expected of a person claiming to be a follower of Falun Gong. Each of the considerations were significant to the critical conclusion or conclusions reached by the Tribunal that the first appellant is not and never was a genuine follower of Falun Gong. When the three considerations are taken together, their significance is manifest. The result is an absence of a logical connection between the evidence and the conclusions drawn by the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ) and see SZOOR v Minister for Immigration and Citizenhip [2012] FCAFC 58 at [84]-[85] (McKerracher J, with whom Reeves J agreed). For those reasons, whilst I recognise that an affirmative answer should not be lightly given, I have nevertheless concluded that the Tribunal’s finding that the first appellant is not a genuine follower of Falun Gong was not grounded upon probative material and logical grounds: SLZSP at [40] (Kenny J) and the cases there cited; and SZOCT at [8]-[10], [24] (Jacobson J) and [71], [80] (Nicholas J).

57        It follows that the Federal Magistrate was wrong to conclude that the Tribunal had not based its determination upon its own understanding of Falun Gong rather than on probative evidence. The Federal Magistrate should have found jurisdictional error in the decision of the Tribunal but failed to do so. The appellants have established appealable error based upon their second ground of appeal.

58        The appellants’ first ground raised the issue of whether the first appellant was given an opportunity to explain and provide evidence as to why his practice of Falun Gong is genuine. It was not an issue raised before the Federal Magistrate and requires the Court’s leave in order to be raised on this appeal. The principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success.

59        In his submissions, the first appellant complained that the Tribunal had set its own way of conducting the hearing and selected the questions it wanted to ask, without giving him “an opportunity to give a full account of my history, love, passion and true belief in practising Falun Gong”.

60        Section 425(1) of the Migration Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. There is nothing in the Tribunal’s decision or which is otherwise before me, which substantiates the proposition that the first appellant was not given an opportunity to present his evidence and his arguments. I am not persuaded that the appellants’ first ground has a reasonable prospect of success sufficient to warrant the grant of leave for it to be raised on this appeal.

DISPOSITION

61        In light of my conclusion as to the appellants’ second ground of appeal, the appeal must be allowed. The orders made by the Federal Magistrate should be set aside and be substituted by orders that provide remedies by way of certiorari and mandamus directed to the Tribunal. Those remedies will have the effect of quashing the decision of the Tribunal and requiring the Tribunal (differently constituted) to hear and determine, according to law, the appellants’ application for review of the delegate’s decision to refuse their applications for Protection visas.

62        The appellants have not sought costs and accordingly no order for costs will be made.

Associate:

Dated:    2 May 2012