Case: Appellant S395/2002 v Minister for Immigration &amp; Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: followed
Counsel relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 and argued that although the Tribunal might have been entitled to examine the appellant's living circumstances in China and reach the conclusion that no past persecution had in fact occurred, the absence of past persecution did not mean that there was not a real chance of persecution in the future. He argued that the Tribunal paid little to no attention to the risks of the appellant suffering persecution upon her return to China. 25 The Federal Magistrate agreed that the Tribunal had dismissed the question of future persecution quite summarily. However, His Honour pointed out that no evidence had been produced to indicate that the appellant would behave any differently in the future to how she had in the past, and concluded: It would in those circumstances be an otiose exercise, having reached conclusions about past activities not having led to persecution, for the Tribunal to expressly posit such activities happening in the future and then make findings based on a prognostication of future events when it was given no basis for considering that future activities would be any different or the response of the authorities any more persecutory. In these circumstances, the Tribunal can only find, as here, that no chance of serious harm on account of such activities will occur in the reasonably foreseeable future. 26 His Honour therefore dismissed the appellant's application for judicial review. 27 The appellant's notice of appeal raises several grounds of appeal. The first three challenge the Federal Magistrate's conclusions on the Tribunal's findings in relation to the issue of future persecution, asserting that His Honour erred in holding that: a) The Tribunal's failure to assess a risk of future persecution did not amount to jurisdictional error, b) It was not required to examine the issue, despite the appellant not giving evidence as to any difference in future behaviour; and c) The Tribunal was not required to make findings relating to this question and that their absence did not amount to the Tribunal asking the wrong question by focusing on any persecution the appellant may have suffered in the past, rather than the future. 28 The notice of appeal also challenges the Federal Magistrate's conclusion in dismissing the claim of jurisdictional error in that the Tribunal's findings regarding the appellant's claimed fear of persecution for reasons of religion, and in particular its failure to consider whether restrictions on public worship amounted to persecution. 29 Finally, it is asserted in the notice of appeal that the Federal Magistrate erred in concluding that the Tribunal had properly considered the appellant's claim for fear of persecution on the basis of a political opinion imputed to her by reason of her son's political activities in Australia, and had properly taken into account the fact of the grant of a protection visa to the appellant's son in its consideration. 30 During argument the appellant's counsel applied for leave to amend a further ground of appeal directed to the passage in the Tribunal's reasons referred to in [8] of these reasons. Counsel asked for time to consider the precise wording of the amendment. I directed the appellant to formulate the amendment within 7 days and each party to provide me with written submissions in relation to the application for leave to amend and the substance of the amendment. The parties complied. 31 Whilst the first respondent argued that the ground should be dismissed, no separate argument was put that leave should not be given. The ground of appeal for which leave was sought is: 4. The learned Federal Magistrate erred in not holding that the Tribunal had: 4.1 upon finding that "the repression of the Uighers stems deeper than mere disadvantage, as they are being deliberately persecuted for practising and preserving their culture and religion"; 4.2 committed jurisdictional error by not considering whether, in light of that finding, the Appellant, as an Uigher person, would therefore also be persecuted if she were to return to China. 32 It would be appropriate in the circumstances of this appeal to grant leave to amend in the absence of any objection by the first respondent and because the ground is related to the first ground, and because in my opinion the ground should be upheld. 45 The respondent further submitted that no error of the type referred to in Appellant S395/2002 216 CLR 473 arose because the Tribunal focused on the appellant's particular circumstances. The first respondent argued that the Federal Magistrate correctly held that the Tribunal was properly engaged in the task of identifying whether a well-founded fear of "serious harm" had been established, rather than attempting to apply, it submitted, an inappropriate test as to what constitutes religious persecution. 46 The respondent submitted that the Federal Magistrate was correct in dealing with the Tribunal's decision regarding the appellant's son and that no error was apparent in His Honour's decision and ground 3 should be dismissed. 47 The first respondent contended that the appellant's late-raised fourth ground of appeal should be dismissed. The first respondent submitted that, properly read, the passage of the Tribunal's reasons did not mean that the Tribunal accepted as fact that all Uighers are being deliberately persecuted. Rather, it submitted, the Tribunal was reciting an assertion of information provided by Amnesty International. It therefore submitted that no jurisdictional error arose from this passage of the Tribunal's decision. 48 There are four reasons why, in my opinion, this appeal should be allowed and the orders made by the Federal Magistrate set aside, and orders made for the issue of the constitutional writs. 49 First, in my opinion, contrary to the finding of the Federal Magistrate, the Tribunal did not address the appropriate question in considering the appellant's claims. The question that the Tribunal needed to consider was whether the appellant had a well-founded fear of persecution. This required the Tribunal to consider whether if the appellant were to return to her country of origin, in this case China, there would be a real chance she would be persecuted for a Convention reason. 51 However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499. 52 In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act. 53 The second reason why, in my opinion, the Tribunal fell into error is that the Tribunal did not address one integer of the appellant's claim. She claimed that, by reason of her husband's conduct, her son-in-law's conduct and, more relevantly, her son's conduct, their political opinions would be imputed to her which would give rise to persecutory conduct on the part of the authorities. The Tribunal did not consider whether her son's conduct and the granting of a protection visa to him as a result of the decision of the Tribunal would be likely to give rise to persecution for their political opinions. The Tribunal misunderstood the relevance of the appellant's son being granted a protection visa. 54 Thirdly, in my opinion, the Tribunal fell into error by failing to deal properly with the appellant's claims of feared persecution because of her religious beliefs. There was significant evidence put before the Tribunal as to the manner in which the appellant was restricted by the Chinese State in the practice of her religion, and also as to the manner in which she wished to practice her religion, namely in public with other members of the Muslim community. Despite this, the Tribunal held that "[t]he applicant has not claimed ... that she was effectively prevented from practising her religion in private. She made no claim that she suffered persecution or came to the attention of the authorities on the basis of her religion."