Li v Minister for Immigration & Multicultural Affairs [2002] FCA 64 (5 February 2002)

Last Updated: 11 February 2002

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [2002] FCA 64

GUANG LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1170 OF 2001

STONE J

5 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1170 OF 2001

BETWEEN:	GUANG LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	5 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed;

2. The applicant pay the respondent's costs of the proceeding.

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 1170 OF 2001

BETWEEN:	GUANG LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	5 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the People's Republic of China who arrived in Australia on 6 January 2000. He applied for a protection visa on 3 February 2000. His application was refused by a delegate of the respondent Minister on 12 February 2000. The Refugee Review Tribunal ("Tribunal") affirmed that decision on 12 July 2001. On 7 August 2001, the applicant commenced proceedings in this Court seeking a review of the Tribunal's decision, under Pt 8 of the Migration Act 1958 (Cth) ("the Act").

PROTECTION VISA

2 Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant is a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("Convention"). References to provisions of the Act are to those provisions as they were before the amendments commencing on 2 October 2001. Article 1A(2) of the Convention defines a refugee as a person who has a "well-founded fear of being persecuted" for a reason specified in the Convention.

THE APPLICANT'S CLAIMS

3 In his written submission dated 3 February 2000 the applicant claimed that he had a well-founded fear of persecution because of his membership "of a particular social group", namely as a practitioner of Falun Gong. He claimed that a school friend introduced him to the practice of Falun Gong in April 1996. When Falun Gong was declared to be a reactionary organisation by the Chinese government he was dismissed from his employment and forced to write statements of repentance and to hand over his exercise books, clothes and cassettes, presumably those relating to his practice of Falun Gong. He also claimed that the Chinese government forced him to make a list of Falun Gong members. In his written statement the applicant claimed that his father suffered a "cerebral concussion" as a result of the government's action. Later, in oral evidence before the Tribunal, he stated that his father was not affected. The Tribunal did not succeed in clarifying this point. The applicant also claimed that as a result of government pressure his girlfriend broke up their six-year relationship.

4 The applicant claimed that, after a media report in February 1997 referring to the movement's criminal activities and publicising of superstition, the Public Security Bureau (PSB) announced that the practise of Falun Gong in public places must cease. The applicant further claimed that "the head of his district and head of the police station came to him and told him not to join ... in practising Falun Gong in public places." The applicant claimed that he, and other practitioners, protested about the unreasonableness of the PSB and continued to practise Falun Gong. In July 1997 he resigned from his work and accepted his uncle's invitation to work in Nanching City, where he also helped his uncle organise gatherings of Falun Gong practitioners.

5 The applicant alleged that the municipal authorities started monitoring the activities of Falun Gong in January 1999 and that in July 1999 he and his uncle were taken by the authorities to a detention centre. He claimed that during his detention he was beaten and tortured, being freed after four days upon his undertaking not to practise Falun Gong.

6 The applicant claimed that he feared returning to China because "many people who practised Falun Gong had been sent to labour camps or psychiatric hospitals." The applicant claimed he could not practise Falun Gong privately in his own home as Falun Gong requires listening to cassettes which can be heard by informants.

THE TRIBUNAL'S DECISION

7 The Tribunal considered the applicant's application, including his written statements and oral evidence. It also considered extensive independent country information and referred to the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status.

8 The Tribunal accepted that the applicant was a Chinese citizen who arrived in Australia on 6 January 2000. It accepted that the applicant had knowledge of, and practised, Falun Gong. However the Tribunal found that the applicant "did not assist his uncle to organise gatherings of Falun Gong practitioners nor did he play any role, other than as an ordinary practitioner of Falun Gong."

9 In making its findings the Tribunal pointed to several inconsistencies between the applicant's written statements and his evidence given orally to the Tribunal and noted that the applicant was evasive and gave inconsistent responses when important inconsistencies were put to him. The Tribunal noted that the applicant's evidence concerning his assault by fellow detainees was, "strained in the telling and not in the least convincing. It was not a description of mistreatment that suggested the [a]pplicant might have personally experienced it." The Tribunal was not satisfied that the applicant had been detained or mistreated for being associated with Falun Gong. Given that the applicant had been able to leave China on his own passport without any difficulties, and based on the independent country information, the Tribunal was also not satisfied "that the [a]pplicant has been under adverse notice from the Chinese authorities nor that he has any reason to fear that on return to China he will be arrested for any association he has had with Falun Gong."

10 The Tribunal was not satisfied that the applicant had truthfully stated his intention to resume his practise of Falun Gong on his return to China and did not, therefore, give weight to the argument that the applicant "may come to the attention of the Chines [sic] authorities and suffer harm of a persecutory nature if he should practise Falun Gong on his return to China". In any event, the Tribunal relied on the independent information, which was criticised by the applicant, that ordinary adherents of Falun Gong who practised privately in China were unlikely to be the subject of particular attention by the authorities.

11 The Tribunal was not convinced of the applicant's devotion to Falun Gong, stating that it was, "not convinced that [the applicant] would take the risk of detention and mistreatment for himself or for his family by practising Falun Gong, even privately." Even if the applicant did practise Falun Gong privately the Tribunal found, on the independent country information, that "he could do so without facing a real chance of treatment amounting to persecution." The Tribunal was not satisfied that the applicant would be persecuted for reasons of his practise or support of Falun Gong on his return to China. It therefore held that he did not have a well-founded fear of persecution.

GROUNDS OF REVIEW

12 The applicant seeks an order of review in respect of the Tribunal's decision. The application does not identify any ground of review but merely reiterates the claims already made about Falun Gong and the potential for its practitioners in China to be persecuted. At the hearing before me today the applicant appeared for himself assisted by an interpreter. The applicant made a number of claims that he had made before the Tribunal and emphasised his belief that he would be persecuted if returned to China. In essence he was taking issue with the weight that the Tribunal attributed to the evidence and seeking to reagitate some of the Tribunal's adverse findings of fact such as whether he would continue to practise Falun Gong if returned to China. The gist of his submissions was that the Tribunal came to the wrong conclusion.

13 Unfortunately for the applicant this Court cannot review the merits of the applicant's claims. Its jurisdiction is limited to the grounds laid down in the Act. The applicant has not identified any such ground nor am I able to discern any such error in the reasons of the Tribunal. For these reasons the application must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 8 February 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 February 2002
Date of Judgment:	5 February 2002