NAMS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 189 (10 March 2004)

Last Updated: 10 March 2004

FEDERAL COURT OF AUSTRALIA

NAMS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 189

MIGRATION – refugees – application for refugee status – well-founded fear of persecution not established.

ADMINISTRATIVE LAW – judicial review – decision upon refugee status – where Tribunal concluded no well-founded fear of persecution despite recent independent country information – no failure to accord natural justice – where recommendation made to Minister to consider exercise of Minister’s power – no judicial power to compel directly the exercise of Minister’s personal discretion.


Migration Act 1958 (Cth) s 417

Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 cited
Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 cited
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 cited
Egounove v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49 cited
Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036 cited
NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 cited
Re Minister; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 cited

H Broom, A Selection of Legal Maxims, 10^th ed, Sweet & Maxwell, London 1939.






NAMS V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2224 OF 2003




BEAUMONT J
10 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2224 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAMS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	10 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The recommendation made in par 4 of the orders of the Federal Magistrates Court of Australia be set aside.

2. The appeal otherwise be dismissed, with costs.










Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2224 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAMS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	10 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 This is an appeal from orders of the Federal Magistrates Court.

2 The appellant, a citizen of the People’s Republic of China (‘PRC’), a former policeman and later a Manager, arrived in Australia on 29 August 2001. On 21 December 2001, he lodged with the Department an application for a protection (Class XA) visa, which the Minister’s delegate refused. An application for review of that decision was made to the Refugee Review Tribunal (‘the Tribunal’), which affirmed the Minister’s decision. The appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision, but that application was dismissed. Hence this appeal.

3 It will be necessary to examine the Tribunal’s decision first.

THE TRIBUNAL’S DECISION

4 In its structure, the Tribunal considered firstly, the appellant’s claims to the Department; secondly, his evidence to the Tribunal; and thirdly, made an analysis of some country information; and finally, the Tribunal expressed its findings and reasons.

The claims made to the Department in December 2001

5 The Tribunal noted that in his written statement to the Department dated 20 December 2001, the appellant said that he had decided in 1997 to follow the religious doctrine of Falun Gong, notwithstanding that the Chinese government could not accommodate other religions at all; and despite the fact that once the government felt that Falun Gong threatened its rule, it would take cruel measures to crack Falun Gong down.

6 The Tribunal then cited the following extract from the appellant’s statement:

‘After the crackdown started, the situation became very bad. A lot of detainment centres were set up in different provinces. Some leading Falungong followers were arrested. A lot of ordinary Falungong followers were put into the detainment centres. Every Falungong follower around me was very scared and worried. As I was an active practitioner, I was detained, too.

The experience in the detainment centre was so horrible that I would never be able to forget it. Too many Falungong practitioners were detained. The detainment centre was small. It couldn’t accommodate all of us. They did not provide us enough food and water. The living space was so small and so crow[d]ed. The most unbearable and most scaring [sic] thing was the depressing, frightening and terrible atmosphere. It was such ordeal to stay there. It tortured me every minute. We were interrogated by the policemen. They hit us when they were not happy with our answers in the interrogation. They forced us to agree to give up the Falungong practice. If we refused, we were beaten more heavily. It was not a place where a human being wanted to stay. It was like the hell. I wish I had never been there.

I was finally set free. But they still couldn’t leave me alone. I went home. My parents were very scared. They couldn’t allow me to practise Falungong. They said if I did not obey, they would rather cut off their connection with me. The leaders in my work unit threatened me that if I kept practising, they would lay me off. And they finally did.

I feared all of the persecution. I feared that if I remained in China, I would lose my freedom. I feared that they would put me back into that horrible detainment centre again because whenever I thought of the days in that centre, I couldn’t help shivering from the bottom of my heart. That is why I left China in the first place.

After I came here, I kept in contact with my family. I was told that the crackdown of Falungong was still going on in China. My parents were happy that I left China. Every time when I went to attend Falungong activities in Sydney, I felt happy for myself and I could enjoy the freedom of believ[ing] whatever I wanted to believe. At the same time, I can’t help feeling sorrowful for all the Falungong believers in China.’

The oral evidence given by the appellant to the Tribunal in February 2003

7 For reasons which will appear, it is necessary to cite here the whole of this portion of the Tribunal’s decision, as follows:

‘The [appellant] said that he had written something about Falun Gong for the Chinese newspaper but he had not sent [it] to the newspaper and it has not been published.

The [appellant] said that he had no[] difficulty leaving China and the details in his passport are accurate. He said that prior to leaving China he had been practi[s]ing Falun Gong and he changed to covert practice so he would not have difficulty. Although he had no problems leaving the local police had some talks with him about his Falun Gong activity.
The [appellant] explained how he practi[s]ed covertly and said that in Beijing he was practi[s]ing in park but there was criticism so everyone started to separate so he started to practi[s]e at home. The [appellant] claims that someone told a policeman about his practice at home. He said it was possible for hi[m] to practi[s]e at home but the residential committee became aware that he was practi[s]ing. He already had his visa to Australia at this time so police talked to him.
The [appellant] said that he was practi[s]ing in the garden under the house. He said it was ok to practi[s]e at home but at home the air is not as fresh. Sometimes he did practi[s]e at home but he said it was different to do it inside. He said lot practi[s]e at home but they are still arrested. He said the wall is thin and he likes to listen to the tapes or if the window is open his neighbours hear. The [appellant] said that it can be done without the tape but he prefers the tape.

The [appellant] said that he has never been arrested in China and he did not attend any demonstration in China.

The [appellant] said he studied in the police academy and joined the police force 3 years and 10 months. He left so he could earn more money. He worked in sales with a health products company. H worked wit[h] the private company for 8 years and he ended up manager of one [of] the departments in the Chinese company.

In Australia the [appellant] said he is studying English and he has not worked except for 1 month as a receptionist. He said he is not wealthy but his family gave him some money. He said he gets on well with his family. He has one brother in China who works in the government patent bureau of China.

The [appellant] said at hearing that in Australia he was not practicing Falun Gong publicly when he first came because of language and unfamiliarity. The [appellant] said that he started practicing near the Ashfield swimming pool in 2002 when he moved to Ashfield in June 2002. I put to him that his application said he lived in Ashfield in Dec 2001. He then said he moved in October 2001 to Ashfield and first went to the park near the swimming pool to practice Falun Gong in January 2002. When I asked about the apparent contradiction he indicated that I had not asked the question correctly.

I asked the [appellant to] demonstrate two simple exercises namely, two dragons diving in to the sea and [the] Falun Gong manual (see Ch IV 1.11 & 3.7, 8 & 9). I put to him that he must be a very junior practitioner and he said this was not fair as he does his exercises the same way as other people every morning.

The [appellant] said at hearing that since January 2002 he has

•	Exercised every morning.

•	Gone to the Chinese Consulate in Elizabeth Street 3 times (January 2003, October and May 2002) and

•	Distributed newspaper in Chinatown on one occasion. The paper was called Justice in the World and he distributed it to anyone who was passing as it was all about Falun Gong.

The [appellant] said that if he returned tomorrow he will not have trouble at airport but may have trouble with the residential committee at his home. The residential committee will be aware he has gone home and will tell police who will arrest the [appellant]. He said he would be arrested because he is a Falun Gong practitioner. I put to the [appellant] some country information that indicates low profile practitioners would not be at risk. He said regardless of experience they will arrest everyone. He said if you do just exercises at home you are still in trouble in China.’

The country information cited by the Tribunal

8 Again, for reasons which will appear, it will be necessary to refer to this part of the Tribunal’s reasoning in some detail.

9 Citing several sources, the Tribunal said:

‘There is no question that Falungong promotes salvationist and apocalyptic teachings in addition to its qigong elements. Despite its own protestations to the contrary, it also has a well-organized and technologically sophisticated following and has deliberately chosen a policy of confrontation with authorities. ...

Falun Gong first came to the attention of PRC authorities after demonstrations by Falun Gong adherents in April 1999 in Tianjin and later that month outside the Zhongnanhai in Beijing. The initial government crackdown against Falun Gong began in late July 1999, when a number of government departments implemented restrictive [measures] against the movement, banning Falun Gong and issuing an arrest order for Li Hongzhi. The movement was declared an "evil cult" and outlawed in October 1999.

Founded in 1992, Falun Gong first came to prominence in April 1999 after several thousand Falun Gong adherents staged a sit-in in Tianjin, outside the publishers of the Tianjin University journal that had published an article criticizing the movement. Official attention was heightened when more than 10,000 adherents of Falun Gong coordinated a peaceful demonstration outside Beijing’s leadership compound, the Zhongnanhai, on 25 April 1999. The demonstration was the first major public manifestation of Falun Gong’s popularity in China, and is reported to have caught the PRC authorities unawares. The incident is widely considered to have been the trigger for the initial crackdown against Falun Gong commencing in July 1999. The authorities are reported to have been mainly concerned by the capacity of the group to mobilize large numbers of followers, unnoticed, for a public demonstration. Subsequently, after some conflicting signals, they branded the Falun Gong a "threat to social and political stability". The government banned Falun Gong on 22 July 1999 and launched a massive propaganda campaign to denounce its practice and the motivation of its leaders, in particular Li Hongzhi. Since then, the government’s accusations against the group have been repeatedly publicized by the state media and government officials.’

10 Without citing any specific source, the Tribunal went on to say:

‘The crackdown against Falun Gong commenced in July 1999. From that time on, Falun Gong protests were countered by police roundups in which thousands of practitioners were detained in police lockups and makeshift facilities for short-term ‘reeducation’. The crackdown was accompanied by a coordinated media campaign by China’s public institutions, highlighting the alleged dangers of Falun Gong and attempting to justify the crackdown. From July 1999 until the end of 1999, a "legal infrastructure" to counter Falun Gong was erected: the banning of CCP members, civil servants and members of the military taking part in Falun Gong activities; the introduction of restrictions on legal officers representing Falun Gong practitioners and a circular calling for confiscation and destruction of all publications related to Falun Gong. Falun Gong internet sites also came under attack.

By October 2000, a year after the "evil cult" regulations went into effect, the government was demonstrating less and less tolerance for rank-and-file practitioners who continued to defy the government by participating in protest rallies. Instead of sending them back to their hometowns for "transformation," they were immediately detained.’

11 The Tribunal noted reports suggesting –

‘... that a series of increasingly more restrictive measures were implemented during 2001. Such measures included the utilisation of more severe sentences, allegedly incorporating the use of psychiatric institutions to detain and "re-educate" Falun Gong practitioners; an increase in systematic and state sanctioned violence against Falun Gong practitioners; an escalated propaganda campaign against Falun Gong, repeatedly reinforcing the government’s message that the group was an "evil cult" which posed a threat to Chinese society; and the utilization of state institutions such as the police and universities to combat Falun Gong.’

12 The Tribunal further noted the following:

‘The measures employed by PRC authorities during 2001 were met with some degree of success: by late 2001 many reports were suggesting that Falun Gong had been effectively suppressed as an active and visible organisation within China. The success of these measures also necessitated a change in the conduct of the Falun Gong organisation in China itself. While there has been a dramatic abatement in the visibility of Falun Gong activities within China, there have increasingly been reports highlighting demonstrations in China by foreign followers of Falun Gong. These demonstrations have been met with strong resistance from PRC authorities, with the arrest, temporary detention and expulsion of foreign Falun Gong adherents commonly reported.’

13 The Tribunal went on to refer to reports that PRC authorities are less interested in individual members practising alone than those actively propagating Falun Gong as a ‘core’ member.

14 The Tribunal next cited a Department of Foreign Affairs and Trade (‘DFAT’) indication in November 1999 that –

‘... the Chinese government’s campaign against Falun Gong had targeted the leaders and organisers of the organisation, and those with some degree of influence or recognition, noting:

The main criterion for selecting individuals for prosecution while releasing others appears to be the degree to which an individual has played a leadership or organisational role in Falungong. [T]his is especially the case for those suspected of organising demonstrations and other perceived acts of defiance after the banning of Falungong on 22 July [1999]. Detainees who express contrition for their actions, renounce their beliefs and publicly denounce Falungong teachings are likely to be released quickly after questioning. Others have been released with a warning . ...

Those deemed to have played a leadership role faced possible charges of "incitement to subversion". ... PRC authorities have questioned large numbers of Falungong practitioners in their efforts to identify leaders and organisers. In many cases, such questioning has involved periods of detention. Early release is offered for those who co-operate, including by identifying those who had "led them astray".’

15 The Tribunal concluded its analysis of country information as follows:

‘A Canadian Immigration and Refugee Board research response in January 2000 highlighted information indicating that Falun Dafa practitioners may face criminal as opposed to administrative punishment if they are alleged to have occupied a leadership role, publicized Falun Dafa through the Internet or print publications, "leaked state secrets" about the campaign against Falun Dafa or were high ranking officials. (Immigration and Refugee Board of Canada, 2000. CHN33627.E., 21 January – REFINFO)

Official reports continue to distinguish between a small minority of "core members" or "diehards" who play leading roles or actively participate in illegal Falungong-related activities, and the majority of ordinary practitioners "infatuated" or led astray by Falungong. (Department of Foreign Affairs and Trade (DFAT) 2001, China Falun Gong Update, 10 September – CISNET China CX57264; DFAT 2002, CIR No. 136/02 Falun Gong practitioners, 20 May – CISNET China CX64757)

The US Department of State’s International Religious Freedom Report 2002, however, suggests that the targets for such repression were widened from those groups discussed above. The report stated:

After the January 2001 self-immolations of five individuals claiming to be Falun Gong practitioners in Tiananmen Square, the Government initiated a comprehensive effort to round up practitioners not already in custody, and sanctioned the use of high pressure indoctrination tactics against such individuals in an effort to force them to renounce Falun Gong. Neighborhood committees, state institutions (including universities), and companies reportedly were ordered to send all known Falun Gong practitioners to intensive anti-Falun Gong study sessions. Even practitioners who had not protested or made other public demonstrations of belief were forced to attend such classes. Those who refused to recant their beliefs after weeks of intensive anti-Falun Gong instruction reportedly were sent to reeductaion-through-labor-camps, where, in some case, beatings and torture were used to force them to recant their beliefs. These tactics reportedly resulted in large numbers of practitioners pledging to renounce the movement. (US Department of State 2002, International Religious Freedom Report 2002: China, October, section II)’

The Tribunal’s findings and reasons

16 The Tribunal noted the appellant’s claim that he had practised Falun Gong in China and that he had been warned by police to stop practising Falun Gong, but that he had never been arrested in China, and had never participated in a demonstration in China. At the hearing, the appellant showed some superficial knowledge of Falun Gong, but he was unable to show the simple exercises involved in the practice of Falun Gong, despite his claim that he was practising Falun Gong nearly every day, both in China and in Australia, for some years. He said he had participated in a few, but not many, activities since his arrival in Australia.

17 The Tribunal then expressed this conclusion:

‘Having regard to the deficiencies in the [appellant’s] evidence and his low level of participation in activity in support of Falun Gong in Australia I accept that he is in fact an adherent of Falun Gong but that he is a practitioner at a very low level.’

18 The Tribunal went on to conclude that the appellant ‘would be able to practise Falun Gong at this level privately in China without fear of being persecuted by the authorities.’

19 The Tribunal said:

‘The [appellant] agreed when [the Tribunal] put to him that the private practice of Falun Gong was quite acceptable in accordance with the beliefs of Falun Gong. As [the Tribunal] put to him, the Australian Department of Foreign Affairs and Trade has advised that private practice of Falun Gong is unlikely to result in any attention from the authorities in China (DFAT Country Information Report No. 58/00, dated 4 February 2000, CX39773; DFAT Country Information Report No. 396/00, dated 17 July 2000, CX43498). The [appellant] said that as soon as the authorities came to know that you were practising Falun Gong they would investigate and that he preferred to do his practice outside rather than in the privacy of his home. [The appellant] accepts the advice of the Australian Department of Foreign Affairs and Trade, which [he] regards as an independent and unbiased source, and accepts that it is not ... necessary to practice Falun Gong outside even though that may be the [appellant’s] preference.’

20 The Tribunal went on to say that it had no doubt that the appellant ‘is not at risk upon return to China ... . [T]he Falun Gong practitioners ... arrested in China have been leaders or organisers or have been in attendance at mass protest meetings’.

21 Noting that the independent evidence indicated that Falun Gong practitioners were able to privately practise Falun Gong in China without attracting the adverse interest of the Chinese authorities, and that there was no requirement that Falun Gong can only be appropriately practised in public settings, the Tribunal concluded that the appellant would be able to practise Falun Gong in private if he returned to China without attracting any adverse interest from the authorities. Therefore, the Tribunal concluded, this would not amount to a restriction on the appellant’s ability to practise his religion, as Falun Gong does not require any form of public practice; so that, the Tribunal held, the need for the appellant to practise his religion privately if he returns to China would not cause sufficient harm to constitute persecution.

22 The Tribunal further concluded that, given this low level of involvement, no well-founded fear of persecution would flow from the facts of the appellant’s attendance at demonstrations in Sydney and handing out newspapers once.

23 The Tribunal found that the chance that the appellant would become involved in protest activities if he returned to China was remote and insubstantial, because he would not be of adverse interest to the Chinese authorities if he returned to China. He would be able to continue to practise Falun Gong without attracting adverse attention. The chance the appellant would become involved in protest activities if he returned to China was remote. However, if he did become involved in any such activities, the Tribunal considered that the appellant would face nothing more serious than brief detention, questioning and release. The chance that the appellant would face persecution in China because of his association with Falun Gong was remote and insubstantial.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

24 In dismissing the application for judicial review, the Federal Magistrates Court said (at [6] – [9]):

‘6. The application contains, essentially, two grounds. The first is that the [Tribunal] found that the [appellant] had fabricated claims about his continuing problems with the authorities due to his association with Falun Gong. The [appellant] asserts jurisdictional error in relation to that finding. In fact, no such finding was made by the [Tribunal]. The [Tribunal] found that the [appellant] had exaggerated somewhat his involvement with Falun Gong. The presiding member noted that the [appellant] was unable to demonstrate accurately two Falun Gong exercises. However, the presiding member accepted that the [appellant] was and remains a Falun Gong practitioner, albeit at a low level.

7. Those findings were reasonably open to the [Tribunal] on the material before it, and I see no jurisdictional error in those findings.

8. The only other ground in the application is that the [Tribunal] failed to accept the [appellant’s] claim that he is a genuine Falun Gong practitioner. The application also asserts that the [Tribunal] finding that any prospect of adverse attention from the authorities on the basis of Falun Gong activity was remote is vitiated by jurisdictional error. As I have already noted, the [Tribunal] did not fail to accept the [appellant’s] claim that he is a genuine Falun Gong practitioner. It did find that there was no real risk of persecution of the [appellant] should he return to China because he was only a low-level practitioner.

9. The [Tribunal] found that the [appellant] had not been politically active as a Falun Gong practitioner in China and had only practi[s]ed at home. The [Tribunal] found that provided that the [appellant] continued only to practi[s]e at home in private he was not at any serious risk. In reaching that conclusion, the presiding member relied upon country information and, in particular, the presiding members refers to a report from the Australian Department of Foreign Affairs and Trade dated 4 February 2000 ... .’

25 But the Magistrates Court went on to question this conclusion as follows:

‘10. However, the Presiding Member also referred to other country information which was more recent which indicated a deteriorating situation for Falun Gong practitioners in China. On page 65 of the court book the presiding member quoted from a US State Department report prepared in 2002 as follows:

After the January 2001 self-immolations of five individuals claiming to be Falun Gong practitioners in Tiananmen Square, the Government initiated a comprehensive effort to round up practitioners not already in custody, and sanctioned the use of high pressure indoctrination tactics against such individuals in an effort to force them to renounce Falun Gong. Neighbourhood committees, state institutions (including universities), and companies reportedly were ordered to send all known Falun Gong practitioners to intensive anti-Falun Gong study sessions. Even practitioners who had not protested or made other public demonstrations of belief were forced to attend such classes. Those who refused to recant their beliefs after weeks of intensive anti-Falun Gong instruction reportedly were sent to reeducation-through-labour camps, where, in some cases, beatings and torture were used to force them to recant their beliefs. These tactics reportedly resulted in large numbers of practitioners pledging to renounce the movement.

11. The [Tribunal] also had before it a report prepared by Human Rights Watch headed, "Dangerous Meditation" ... . It includes a chronology of actions by the Chinese authorities against Falun Gong practitioners. ... [T]he report states:

As of December 2001, there was reason to believe that Falungong was having a hard time keeping its movement alive. China, using an array of legal and extra-legal tools had completely shut down public practice and demonstrations by Falungong adherents. Practice at work units was further curtailed. Some units had always summarily fired known practitioners, with job loss often meaning lost housing, lost schooling, lost pensions and a report to the police. Other work units, especially those far removed from Beijing, had for a time overlooked solitary exercise and meditation until controls were tightened nationwide after the January 2001 deaths. Although followers presumably could continue with solitary practice at home, even private practice proved dangerous when it was brought to the attention of the police or to Party officials.

12. Those appear to me to be the most recent relevant assessments in the country information. The [appellant] told the [Tribunal] that he faced a serious risk of harm because, although he only practised privately, he used tapes to do so and there was a high risk of his practice being detected. He feared that he would be detected by his neighbourhood residents committee and reported. He comes from Beijing, where it would seem that risk would be significant.

13. In the circumstances, there is a real question about the correctness of the assessment of the [Tribunal] whether the [appellant] faces a risk of serious harm if he returns to China and continues to practi[s]e Falun Gong. However, I cannot identify any jurisdictional error committed by the [Tribunal] related to that issue. The proceedings before the [Tribunal] were procedurally fair. The [appellant] was given a reasonable opportunity to put his claims to the [Tribunal] and he was listened to.

14. The [Tribunal] had before it relevant country information and took that country information into account, including the information which pointed to the deteriorating situation for Falun Gong adherents. Although the conclusion reached by the [Tribunal] about the level of risk faced by the [appellant] is questionable, it is not vitiated by jurisdictional error. ... ’

THE APPELLANT’S GROUNDS OF APPEAL TO THIS COURT

26 In the Magistrates Court and in this Court, the appellant appeared in person. However, as was noted in the reasons of the Magistrates Court, the appellant had paid a migration agent $800 for his services in relation to the appeal to that Court. Nonetheless, the grounds of appeal to this Court, dated 2 December 2003, are not helpful, merely asserting –

‘There are some mistakes on the law. And I come from Beijing. It’s the capital of China. So I want to appeal to a higher court. Please review.’

27 Moreover, the appellant has failed to serve an outline of his submissions although directed to do so (on 4 February 2004) on or before five working days prior to the hearing date (26 February 2004).

THE APPELLANT’S APPLICATION FOR AN ADJOURNMENT OF THE HEARING DATE

28 Directions in this appeal, including fixing a hearing date, were held on 4 February 2004. When a hearing date towards the end of February 2004 was then proposed, the appellant sought a later date. A hearing date of 26 February 2004 was fixed, but liberty was reserved to the appellant to move, on notice, to vacate that date.

29 By notice of motion dated 19 February 2004, returnable on 26 February 2004, the appellant stated:

‘I want to change the date. It is better for me to come on 25 March 2004.’

30 In his affidavit in support, filed on 19 February 2004, the appellant stated:

‘I have to write a lot of words but I can’t finish them before 26 February 2004.’

31 On 26 February 2004, the appellant pursued the adjournment application. I refused it, indicating that I would give reasons in this reserved judgment, as follows. As has been noted, the notice of appeal was filed on 2 December 2003. In other words, the appellant had nearly three months to prepare a written submission on material with which he must be familiar. For that reason, coupled with the Minister’s opposition to the grant of the adjournment, the interests of justice required, in my opinion, that the matter proceed on 26 February 2004.

CONCLUSIONS ON THE APPEAL

32 As has been seen, the Magistrates Court was concerned with the existence of recent reports referred to by the Tribunal under the heading ‘country information’. It will be recalled that the Magistrates Court was especially concerned with a report from Human Rights Watch that ‘Although followers presumably could continue with solitary practice at home, even private practice proved dangerous when it was brought to the attention of the police or to Party officials’ (emphasis added).

33 Nonetheless, as the Magistrates Court held, the conclusion reached by the Tribunal about the level of risk faced by the appellant is not vitiated by jurisdictional error, provided the proceedings before the Tribunal were procedurally fair, that is, involved no failure to accord natural justice.

34 In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, Gummow and Callinan JJ (Hayne J agreeing) said (at [23], [24]):

‘[23] ... It is clear that the tribunal misunderstood and failed to deal with this important aspect of Mr Dranichnikov’s case.

[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. ...’

35 Their Honours went on to hold that the Tribunal failed to accord natural justice, so that, constructively, it had failed to exercise its jurisdiction, entitling Mr Dranichnikov to relief under s 75(v) of the Constitution.

36 Can it be said that there was such a constructive failure here?

37 As was mentioned in argument, there appeared to be an apparent contradiction between the claim made by the appellant in his statement to the Department that he had been ‘detained’ on the one hand, and his concession in oral evidence that he had never been arrested.

38 A number of possibilities are at least theoretically open.

39 One possibility is that the oral evidence, which took place later than the statement to the Department, should be accepted as the appellant’s definitive version. This would, of course, amount to a withdrawal of the earlier (apparently false) claim of detention. If so, it is surprising that the Tribunal did not elaborate on how this fundamental concession occurred. Regrettably, no transcript of the Tribunal is in evidence, nor available.

40 Another possibility is that the earlier ‘detention’ claim may be reconciled with the later ‘never arrested’ concession, upon the footing that, without being formally ‘arrested’, the appellant was ‘held’ in a detainment centre for some time and pressured to cease practising Falun Gong. Again, the transcript of the hearing before the Tribunal could have assisted here.

41 Unsatisfactory as any attempt to resolve these procedural issues is, it has to be accepted, I think, that the essential process of reasoning adopted by the Tribunal proceeded in a different direction (ignoring the supposed issues of ‘detention’ and ‘arrest’) in two stages: first, by holding that the appellant was not politically active in China and had only practised Falun Gong at home; and secondly, by holding that, should the appellant return to China and practise privately (that is, at a low level), he was not at serious risk.

42 I agree with the Magistrates Court that, in making those findings, no jurisdictional error was disclosed. There was, upon analysis, no constructive failure to exercise jurisdiction on the material before this Court. For this reason, the appeal to this Court (asserting, in effect (as it must), some form of jurisdictional error) cannot succeed.

THE MAGISTRATES COURT’S RECOMMENDATION THAT THE MINISTER CONSIDER EXERCISING HER POWERS UNDER S 417

43 At the conclusion of its reasons, the Magistrates Court said (at [14]):

‘14. However, the concern that I have about the conclusion reached by the RRT is sufficiently strong to warrant, in my view, a recommendation to the Minister that she consider the matter with a view to considering whether she should substitute a more favourable decision. The Minister has the power, under s.417 of the Migration Act 1958 (Cth) ("the Migration Act"), to substitute a more favourable decision should she so wish. This Court has no jurisdiction over the exercise of that discretion by the Minister. I can, however, make a recommendation.’

44 This recommendation was included as part of the formal orders made by the Court.

45 With respect, it is not open to the judiciary to make a recommendation to the Minister in those terms.

46 It is clear, as the Magistrates Court held, that no court has jurisdiction over the exercise of that discretion. It is equally clear that the meaning and context of s 417 of the Migration Act 1958 (Cth) may, nonetheless, be considered by a court in other contexts (see Re Minister; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [44] – [48]; per Gaudron and Kirby JJ at [99] – [100]; NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [58]; Egounove v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49, per Branson J at [11] – [15]; Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036 per Heerey J at [8] – [9].

47 But, because it does not lie within the judicial power to compel directly the exercise of the Minister’s personal discretion, it cannot lie indirectly within that power: ‘whatever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance’ (see, H Broom, A Selection of Legal Maxims, 10^th ed, Sweet & Maxwell, London, 1939 at 315; Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 per Dixon J at 350; Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 at 217 and the cases there cited). To recommend to the Minister that, because the Tribunal’s conclusion is ‘questionable’, the Minister should consider the exercise of the Minister’s personal power under s 417, is, in effect, an indirect attempt to compel the exercise of that power and, in my view, beyond jurisdiction.

48 I propose to set aside the recommendation.

ORDERS

49 Accordingly, I make orders that:

1. The recommendation made in par 4 of the orders of the Federal Magistrates Court of Australia be set aside.

2. The appeal otherwise be dismissed, with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 10 March 2004

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr Justin Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 February 2004
Date of Judgment:	10 March 2004