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Federal Court of Australia |
Last Updated: 20 February 2004
FEDERAL COURT OF AUSTRALIA
NAVM v Minister for Immigration & Multicultural & Indigenous Affairs
MIGRATION – application for judicial review –
denial of procedural fairness – independent country information not
supplied
– Tribunal gave opportunity to comment on substance of
information – Tribunal failed to record evidence accurately –
errors
were limited in scope – test for breach of natural justice not satisfied
– application dismissed.
Migration Act
1958 (Cth)
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited
R
v Milk Board ex parte Tompkins [1944] VLR 187 cited
Dranichnikov v
Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197
ALR 389 cited
NAVM V MINISTER FOR
IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1195 OF
2003
BEAUMONT J
6 FEBRUARY
2004
SYDNEY
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NAVM
APPLICANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. The application be dismissed,
with costs.
2. The time for filing any appellate process shall not commence to run until 20 February 2004.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
INTRODUCTION
1 This is an application for judicial review, on the grounds of denial of procedural fairness, of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the respondent Minister’s delegate refusing to grant the applicant, a Chinese national, a Protection (Class XA) Visa.
2 In support of his review application made to the Tribunal, the applicant’s solicitors, by letter dated 17 April 2003, stated (par 2) that his claim ‘is based on the fact that he is a practitioner of Falun Gong who is wanted by Chinese authorities for his dedication to its practices’.
3 In the applicant’s declaration statement (Attachment A to the letter), the applicant said that he had been a Falun Gong member since 1997 and stated (inter alia):
‘... It was about midnight 30th April 2001 when I heard somebody knocking on my door. I was so nervous for fear of being arrested by the policeman like Jingguiqing. Fortunately it was her cousin when I answered the door. As a messenger, he looked panicky too and urging to leave China as soon as possible with the help of Lichunye, [who] ... worked for travel. I was also told to burn the name lists, books and logos of all the Falungong practisers and try to inform all the rest of the practisers. I did as told right away that night and told Lichunye everything about myself the following day. She placed a phone call to a policeman and asked him to help me travel abroad. Later, with the help of other Falungong practisers, I fled to the Genzhuang county of Haichen and took shelter in the house of Mrs Li.’
4 The solicitors’ letter also addressed ‘Country Information’, stating (inter alia) that –
‘7. It is also noteworthy that note of the published decisions of the Tribunal in the period between RRT Reference: NOO/35995 of 23 May 2002 and RRT Reference: NOO/34719 of 12 December 2002 contains a decision relying upon claims to practising Falun Gong. Without access to the Tribunal’s unpublished decisions, it is not possible to determine whether this is the result of the Tribunal not taking any decisions based on claims to practise Falun Gong or whether none of the Members has taken a decision sufficiently noteworthy to be published. In either case, the country information shows a serious intention on the part of the Chinese authorities to suppress Falun Gong and serious breaches of human rights in giving effect to their intentions.
8. There is ample country information of recent origin that shows that the Chinese authorities regard Falun Gong as a serious threat to the political system they have created in that country. Despite signs that the Chinese government has relaxed the socialist economic restrictions that bound the country for so long, other aspects of Chinese life remain as tightly controlled as ever. This is particularly true of the political system in place, which entrenches the Communist Party of China and suppresses all other political opinion.’
5 The letter stated (par 9) reports published by the United States State Department in 2001 ‘might have led to a view’ that the attempts by the Chinese authorities to suppress Falun Gong ‘had largely run out of steam’ and that it would be safe for individuals, such as the applicant, to return to China. However, the letter added, the Country reports for 2002 ‘reveal a quite different picture’. The letter then cited from a State Department report of 31 March 2003, which included the following statements:
‘The Government continued its crackdown against the Falun Gong (FLG) spiritual movement. Thousands of practitioners were incarcerated in prisons, extrajudicial reeducation-through-labour camps, psychiatric facilities or special deprogramming centers. FLG adherents conducted far fewer public demonstrations than in past years, which some observers attributed to the effectiveness of the Government’s crackdown. Several hundred Falun Gong adherents reportedly have died in detention due to torture, abuse and neglect since the crackdown on Falun Gong began in 1999.
...
During the year, deaths in custody due to police use of torture to coerce confessions from criminal suspects continued to be a problem. ... Since the crackdown on Falun Gong began in 1999, there reportedly have been several hundred deaths in custody of FLG adherents, due to torture, abuse, and neglect.’
...
During the year, the Government continued its harsh and comprehensive campaign against the Falun Gong. There were many thousands of cases of individuals receiving criminal, administrative, and extrajudicial punishment for practicing [sic] FLG, admitting that they believed in FLG, or simply refusing to denounce the organization or its founder. By mid-year 2001, the campaign against FLG appeared to have abated somewhat in eastern and southern China, perhaps due to the decreased number of practitioners in those regions, but the campaign in Sichuan Province and the northeast continued.
...
However, most practitioners were punished administratively. Many thousands of persons were in reeducation-through-labor camps. Other practitioners were sent to detention facilities specifically established to "rehabilitate" practitioners who refused to recant their belief voluntarily. In addition, hundreds of FLG practitioners have been confined to mental hospitals (see Section 1.d).
Police often used excessive force when detaining peaceful FLG protesters, including some who were elderly or who were accompanied by small children. During the year, there were numerous credible reports of abuse and even killings of FLG practitioners by the police and other security personnel, including police involvement in beatings, detention under extremely harsh conditions, and torture (including by electric shock and by having hands and feet shackled and linked with crossed steel chains). Various sources reported that since 1997 several hundred FLG adherents have died while in police custody (see Section 1.a.). In February Chengdu University Associate Professor Zhang Chuansheng, a longtime FLG practitioner, was arrested in his hometown and taken to Chengdu’s main prison. He died there 3 days later. Prison authorities claimed the 54-year-old had died of a heart attack, but his family, who saw his body after Zhang’s death, claimed he had been severely beaten.
FLG practitioners continued their efforts to overcome government attempts to restrict their right to free assembly, especially in Beijing, but the number of protests at Tiananmen Square decreased considerably during 2001 and remained low during the year (see Section 2.b.).
In 2001 the Government launched a massive anti-FLG propaganda campaign, initiated a comprehensive effort to round up practitioners not already in custody, and sanctioned the use of high pressure indoctrination tactics in an effort to force practitioners to renounce the FLG. Neighbourhood committees, state institutions (including universities), and companies reportedly were ordered to send all known FLG practitioners to intensive anti-FLG study sessions. Even practitioners who had not protested or made other public demonstrations of belief reportedly were forced to attend such classes. Those who refused to recant their beliefs after weeks of intensive anti-FLG instruction reportedly were sent to reeducation-through-labor camps, where in some cases, beatings and torture were used to force them to recant; some of the most active FLG practitioners were sent directly to reeducation-through-labor camps. These tactics reportedly resulted in large numbers of practitioners signing pledges to renounce the movement.’
6 As has been seen, the ‘essence’ of the applicant’s claims for protection made to the Tribunal was that he was a practitioner, indeed a vice-president and an organiser, of a Falun Gong station – Falun Gong being a quasi-spiritual movement which has been banned by the Government of the Peoples Republic of China. He claimed: that he had organised protests in China; that he was not arrested or detained prior to his departure; that he was assisted to leave China by a Falun Gong practitioner in the Public Security Bureau; that since he left China, his wife has been dismissed from her employment; and that his child has been victimised at school.
7 Pursuant to s 425 of the Migration Act 1958 (Cth) (‘the Act’), the applicant was invited to a hearing before the Tribunal on 29 April 2003. He attended this hearing, and was accompanied by his solicitor, Mr Fergus. A transcript of the hearing is in evidence in these proceedings.
THE TRIBUNAL HEARING
8 After certain preliminaries, the Tribunal stated what it understood to be the essence of the applicant’s case. This was, in effect, that he was a 46 year old man from Anshan City, Liaoning Province in China, that he was an engineer who was employed until he left China, that he was, and is, a Falun Gong practitioner and was in fact a vice-president of his local station and in that capacity organised protests. He denied, however, that he had been arrested before leaving China. The applicant agreed that these were the essence of his claims. However he did not ‘... affirm the completeness and correctness of the application’ as was stated in the Tribunal decision.
9 The Tribunal asked the applicant about matters of concern to it. It acknowledged that the applicant knew the five basic Falun Gong exercises, and accepted that his answers were correct and that he was a practitioner.
10 The Tribunal also asked the applicant as to his understanding of the one page introduction (known as the ‘Lunyu’) at the start of a book known as Zhuan Falun. In its Reasons, the Tribunal recorded that his answer was: ‘that people cultivate the universe. It was about truthfulness and compassion.’
11 However, the applicant’s answer was stated inaccurately. He actually said (through his interpreter) at the answer to Q41 of the transcript –
‘People cultivate their mind and their body according to the characteristics of the universe, that’s what the Falun Gong means.’
12 Further, in the course of the hearing, the Tribunal asked about what concerned the Chinese government about the Falun Gong demonstration in Beijing on 25 April 1999. The answer, as recorded by the Tribunal in its Reasons was said to be ‘... it was a big group and when the protestors left Zhongnanhai, the area was very clean’. However, the relevant passages of the transcript are:
‘Q55 And just finally in relation to the 25th of April, 1999, what did the protest actually physically do that worried the Chinese government so much?
A(Intprtr) So because the Falun Gong group was growing bigger and bigger, according to the central government that the number of the Falun Gong practitioners had outnumbered the number of Communist Party members. Because the Falun Gong group is a very well organised group and it has very strict regulations, for instance there were so many people went to Zhongnanhai and after they left, there was not even a cigarette butt on the ground ---
...
... Now, you say that you just said that the Falun Gong is strongly, rightly organised. Can you tell me how it is organised?
...
A(Intprtr) Actually that was the impression that the Chinese government got, actually with Falun Gong group there’s no actual organisation.’
13 After canvassing other issues, including as to why the applicant did not attend the Departmental interview, the Tribunal recorded, in its Reasons:
‘The Tribunal put to the applicant that there was no such position as VP [i.e. vice president] of FG [i.e. Falun Gong]. He replied that FG were persecuted in the daily newspapers and Chinese newspapers.’
14 However, what was actually said was:
‘Q85 What I’m also having a little bit of difficulty is that in my search of independent country information I’ve never ever seen anybody being referred to as a Vice President of Falun [G]ong, nor have I ever heard it described as being a tightly-knit group.
A(Intprtr) So the, you can often find the reports of, or that the practitioners of Falun [G]ong were prosecuted in the newspaper (indistinct) Chinese Daily in Australia. Also another Chinese newspaper.’
15 The Tribunal also put to the applicant its perception of certain of the information that it had before it, including information as to the types of people being targeted in China, and the information that it had about exit procedures in China.
THE TRIBUNAL DECISION
16 The Tribunal stated, in its approach to the applicant’s evidence and claims, the following:
‘Where ICI [i.e. independent country information] conflicts with [the] information presented by the applicant, the Tribunal prefers that presented by ICI. Where assertions have been made and no ICI could be located to support alleged claims or incidents, the Tribunal has inferred that the assertions are not based on fact or the incidents did not occur.’
17 The Tribunal then found –
(a) The applicant’s claim that he was a vice-president of his local work station is false, because independent country information indicates (by absence of mention of the position) that no such position exists.
(b) His claim that he was a ‘practice station person’ was rejected because he did not publicly display a commitment to Falun Gong after its banning, and since the ban he only practised privately.
(c) His claim that he was anything other than an ordinary member of the Falun Gong was undermined by his alleged occupation of the alleged non-existent position of vice-president, his alleged ignorance of the Lunyu, and his incorrect answer to the date of the banning of Falun Gong.
(d) His claim that his wife was dismissed from her employment, and his child was denied educational opportunities was rejected because it was improbable that the punishment ‘metered out’ to them was more severe than anything that he suffered in China.
(e) From the above findings, and the lack of independent country information supporting the proposition that he could have been assisted to leave China by a Falun Gong practitioner within the Public Security Bureau, it follows that no such assistance was rendered.
(f) As he was neither a leader nor an organiser, he was not of adverse interest to the Chinese authorities.
18 The Tribunal thus found that the applicant had no subjective fear of persecution.
THE GROUNDS OF REVIEW
19 The applicant says that he was denied procedural fairness in two ways.
20 The first is that he was not given a real or adequate opportunity to respond to the allegedly adverse material in the possession of the Tribunal.
21 At p 3.2 of the Tribunal transcript, Mr Fergus raised his difficulty in obtaining independent evidence.
22 At its hearing the Tribunal put the following to the applicant:
‘Q69 Okay. Now, the independent country information that I have indicates that the Chinese authorities ... tend to target mostly the leaders and organisers of the practice, rather than what appears to be your role, more or less, even though you describe it as Vice President and a practice station person, you seem to be more an ordinary person that’s involved in getting things organised in a sense of putting out information but it would put you more in the class of being an ordinary member practitioner rather than a leader and an organiser. Now, on that independent country information you would not have been targeted in China being an ordinary member. It was only the leaders and the organisers who tend to be targeted in China. What does he say to that?
A(Intprtr) No, that’s not true.
Q70 Would you like to expand?
A(Intprtr) Firstly, because (indistinct) general practitioners they go to their stations to practice (indistinct) ...’
23 The following exchange later took place:
‘A(Intprtr) So you mention that only the organisers of Falun Gong ---
Q78 Leaders and organisers.
A(Intprtr) --- are ---
Q79 Leaders and organisers.
A(Intprtr) --- they were effected.
Q80 That’s all right, let him say (indistinct)
A(Intprtr) And also including the general practitioners of Falun Gong, they were attacked.
Q81 The independent country information we have on the – it refers to them as general, I refer to them as ordinary, but I think they’re the same – usually if they are contacted by the authorities, they’re usually treated quite differently from the leaders and the organisers. Usually they’re spoken to, to retract their practice which doesn’t create a problem because you can do it at home and usually they’re sent on their way. It’s rarely, and indeed I don’t have any independent country information to indicate that ordinary practitioners have been, as it were, harassed for being (indistinct). So it is more in the interests of the government to make sure that these people go back into the general community and stop being the so-called threat that they think they are to the government. What does he say to that?
A(Intprtr) Can you repeat that, please.
A82 What I’m saying is this. You have your general members which I’ll refer to as ordinary and you have your leaders and organisers on the other side. These people, the ordinary members, are treated differently from those people, the leaders and the organisers. These people, the ordinary, general people are spoken to by the authorities and they walk away. The leaders and the organisers tend to have a harder time. What do you have to say to that?
A(Intprtr) So in terms of giving hard time, so the treatment that is received by both of the general practitioners and leaders are the same. So with the general practitioners, so if they are questioned by the authority so they are required to say that Falun Gong is not good. As a general practitioner it’s very difficult for him or her to say, Falun Gong is not good because, you know, everybody has the true experience for the benefit by Falun Gong. So according to the number of detainees being the gaol, rehabilitation camps ---
Q83 A number of detainees in what?
A(Intprtr) In gaol.
Q84 Sorry. In gaol. Right.
A(Intprtr) In Gaol. Rehabilitation camps and psychiatric hospitals in China, not all of them are the leaders. The authorities takes (indistinct) to make you suffer as long as you keep the practice of Falun Gong until one day you will give up.’
24 It is common ground that the Tribunal’s view that the applicant was but an ordinary member of Falun Gong raised the issue of whether he faced a well-founded fear of persecution as an ordinary member, and that its conclusions that leaders and organisers are subject to persecution is based on its perceptions of three documents, two Department of Foreign Affairs and Trade (‘DFAT’) cables of 9 November 1999 and July 2000, and a Human Rights Watch document dated 2002. But the evidence of Mr Fergus and of the applicant before me is that they had no knowledge of two of these documents, and that Mr Fergus was only aware of the third because it was cited in the delegate’s decision.
25 On behalf of the applicant, it is submitted that the Tribunal put its perceptions of the country information to the applicant in general terms; and that, given the difficulty mentioned by Mr Fergus to the Tribunal (see above), all the applicant could do was respond in general terms; but there was a great deal more that could have been said about these documents, and particularly ‘Human Rights Watch, Dangerous Meditation: China’s campaign against Falun Gong, 2002’; so that the applicant was not given an adequate opportunity to answer the case against him. Reliance is placed by the applicant upon the principles stated in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 612, 615 and 628; and Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [123], emphasising the flexibility of the application of the rules of natural justice.
26 I accept, of course, the existence of these general principles.
27 Particular reliance is also placed upon R v Milk Board ex parte Tomkins [1944] VLR 187.
28 Tomkins concerned an inquiry by a Milk Board for the purpose of assessing compensation for loss of a dairy business upon introduction of a wartime block zoning. In considering the application of the principles of natural justice to the facts of that case, Lowe J said (at 197):
‘In my opinion where particular facts or documents are relied on by the Board it must disclose these to the claimant and give him an opportunity, if he desires it, of answering them. Instances where the Board should so have acted occur throughout the reasons of the Board, e.g., where it speaks of "estimates" and "surveys" and "the evidence establishing, &c."’
29 In my opinion, his Honour’s observations should be viewed as directed to the case at hand, and cannot govern the circumstances of this case.
30 Noting that Mr Fergus revealed to the Tribunal the information available to him, the applicant submits that to be given the requisite opportunity, in the circumstances of his case, he or his advisor had to have been provided with the actual documents upon which the Tribunal relied. Mr Fergus says in his affidavit that had the relevant material been provided, he would have responded. If his evidence on that point is accepted (and it was not disputed), then prejudice to the applicant is established, and the decision should be set aside.
31 I have difficulty accepting the applicant’s submission, for the several reasons advanced for the respondent Minister as follows:
• Because the Tribunal was concerned with whether it accepted the applicant’s account of his experiences and fears, the fact that some of the documents were not the most recent available, does not form a basis for criticising its conclusions. The applicant claimed that he joined Falun Gong in 1997, his group was banned in 1999 and he came to Australia in September 2001. Documents dated 1999 and 2000 were therefore likely to be relevant in assessing the veracity of his claims. (In any event, his claim appears to be an attack on the merits.)
• The conclusion which the Tribunal was inclined to draw from the documents was canvassed with the applicant. The Tribunal’s reasons record that it put its view of the country information to him and he replied that it was not correct. The transcript extracts now quoted by the applicant bear this out. The applicant and his solicitor could have been in no doubt that the Tribunal had information which indicated to it that ordinary Falun Gong practitioners were not subject to persecution. Since the Tribunal regarded the applicant as an ordinary practitioner, this was obviously a point which needed to be answered. The fact that the Tribunal did not refer to specific documents did not prevent the applicant and his adviser from making a response to the substance of the information. Specifically –
(a) The applicant’s adviser had provided a written submission prior to the hearing, which included extensive references to relevant documents. The Tribunal’s attention could have been drawn to these sources.
(b) The applicant was able to respond orally to the Tribunal’s indication of the conclusion it was inclined to reach. His adviser was invited to make submissions at the end of the hearing.
(c) Having alerted the applicant and his adviser to the issue, the Tribunal did not resist any attempt by them to learn more about its sources of information and build a case in response. The Tribunal was not asked to identify its particular sources or to allow any further time for the applicant to make further submissions.
(d) The fact that it might have been difficult for the applicant to obtain independent evidence does not cast upon the Tribunal a duty to assist the applicant in that task, since the Tribunal is not obliged to make the applicant’s case.
32 I further accept the Minister’s submission that the form that disclosure of material must take will depend on the nature and context of the decision. It must be borne in mind that the Tribunal is a non-judicial, inquisitorial body (i.e. there is no contradictor), with a heavy case load, which is enjoined by statute to be, inter alia, economical and quick and yet to act according to substantial justice. Tribunal members commonly draw on a body of accumulated knowledge which may encompass a large number of documents.
33 The authorities confirm that procedural fairness requires an applicant to be acquainted with the issues upon which the decision will turn, so that he or she may put a case concerning them. In protection visa decisions, that does not (at least ordinarily) require provision of, or reference to, particular documents. It is sufficient if the ‘substance’ of the ‘information’ is conveyed, so that the applicant may put arguments about its relevance or adduce whatever competing material is available to him or her. In my view, that was done in the present case.
34 The applicant’s second contention is that the Tribunal failed to maintain a system whereby his answers would be recorded accurately.
35 As mentioned, the applicant points to some instances where he says the Tribunal’s summary of answers which he gave at the hearing was not accurate.
36 In oral argument, counsel for the applicant said that it was not contended that there had to be an accurate version of evidence in every case. However, multiple errors in the restatement of the evidence indicate that there may be no adequate procedure adopted by the Tribunal to state evidence accurately and therefore to provide a fair hearing to the applicant.
37 I accept that, as was held in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389, there could be a breach of the rules of natural justice if an important part of an applicant’s case was not addressed or not understood. But, in my view, having regard to the limited scope of the errors to which the applicant now refers, this test was not satisfied here.
ORDERS
1. The proceedings are dismissed, with costs.
2. The time for filing any appellate process shall not commence to run until 20 February 2004.
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I certify that the preceding thirty-seven (37) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Beaumont.
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Associate:
Dated: 20 February 2004
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Counsel for the Applicant:
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Mr L Karp
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Solicitor for the Applicant:
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McDonells Solicitors
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Counsel for the Respondent:
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Mr G R Kennett
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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5 February 2004
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Date of Judgment:
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6 February 2004
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