"CD" v Minister for Immigration and Multicultural Affairs

[2000] FCA 1702

FEDERAL COURT OF AUSTRALIA

"CD" v Minister for Immigration & Multicultural Affairs
[2000] FCA 1702

“CD” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 677 OF 2000

NORTH J
8 NOVEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 677 OF 2000

BETWEEN:	“CD” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	8 NOVEMBER 2000
WHERE MADE:	MELBOURNE

UPON THE UNDERTAKING

:
given by the respondent through counsel for the respondent that the applicant will not be removed from Australia, except by the consent of the applicant in writing filed in the Court, until the applicant is provided with a copy of the written reasons for decision in this proceeding and the expiration of the time limited for appeal against that decision:

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent's costs of and incidental to the application.

3.The operation of paragraph 2 is stayed until 8 May 2001.

4.The applicant be referred to henceforth, and in all court documents hereafter filed, as “CD”.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 677 OF 2000

BETWEEN:	“CD” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	8 NOVEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, “CD”, is a 33 year-old citizen of the People's Republic of China who arrived in Australia on 14 August 1999.  He was entitled to stay in Australia until the expiry of his visa on 14 September 1999.  In fact, he stayed in Australia beyond that date and was located and placed in immigration detention in January 2000.  On 9 June 2000, nearly six months later, he lodged an application for a protection visa, and on 27 June a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, refused his application.

   BACKGROUND AND CLAIMS

2. Before the Refugee Review Tribunal (the Tribunal) the applicant was represented by the Refugee and Immigration Legal Centre and was assisted by an interpreter in the Mandarin language.  The Tribunal set out the applicant's claims and the evidence upon which he relied. I set out, in brief, the critical parts of the Tribunal’s decision.

3. The applicant was born on 16 April 1957.  He went to school from 1964 to 1974 and, after training as a sailor, worked as a sailor between 1978 and 1986.  Between 1986 and 1997, he worked in a factory, and then was unemployed between 1997 and 1999.  He was married in 1983 and has a daughter.  His parents, siblings, spouse and children remain in China.

4. His claim for a protection visa was based on a fear of persecution on the ground of religion.  He claimed that he feared persecution because of his association with the Falun Gong religious sect from 1997.  He said that he and a friend were both on a black list of persons to be arrested.  His friend was arrested before he could leave the country.  The applicant stated before the Tribunal that, since his arrest in Australia, he had learned that the Chinese authorities were looking for him.

5. The Tribunal then set out a description of the questions concerning the origins, beliefs and practices of Falun Gong which the Tribunal had put to the applicant, and described the applicant's answers to those questions. 

   TRIBUNAL’S FINDINGS

6. Under the heading “Findings and Reasons”, the Tribunal dealt with the core of the applicant's claim, namely, that he fears persecution because he belongs to Falun Gong.  In relation to the applicant's evidence of his knowledge of the origins, beliefs and practices of Falun Gong, the Tribunal found as follows:

   “The Tribunal is not satisfied that the Applicant has more than a passing knowledge of Falun Gong and rejects his claim that he was ever involved in the organisation of a local Falun Gong group in his own city.  He claimed that he had distributed books and other Falun Gong literature but was unable to answer questions on the titles of any of these books.  In particular he was unable to name the writings of Master Le HongZhi.  Le HongZhi is the founder and guru of Falun Gong.  Therefore the Tribunal finds this lack of knowledge about the founder to be antithetical to his claim to have been part of Falun Gong. 

   The Tribunal is satisfied that the applicant was asked questions which an ordinary practitioner of Falun Gong could be expected to know about.  He was not asked questions which assumed he would have a sophisticated knowledge of Falun Gong.  However, membership of the group must mean something.  There must be some reason for a person with no religious background to decide to join a group which has a particular construction on the meaning of life, both individually and cosmically.  Apart from mentioning that Falun Gong was aimed at bringing good health, he was unable to convey any other of its aims.”

7. The Tribunal stated that it could err on the side of generosity and accept that an interest in health and healing may be a sufficient reason for the applicant to belong to Falun Gong.  The Tribunal referred to evidence of the centrality of five core exercises to the practice of Falun Gong.  It then said:

   “The applicant told the Tribunal that it did not matter which exercises one did and there was no set group of them.  There was no specific number.  The Tribunal finds this at such odds with other information on Falun Gong that it concludes he is not a devotee of Falun Gong.”

8. The Tribunal rejected the applicant's claim that he was an organising member of Falun Gong and, therefore, rejected his claim that, for this reason, he was wanted by local authorities. 

9. Next, the Tribunal made reference to the demonstration by devotees of Falun Gong held in Beijing on 25 April 2000, and considered evidence concerning the two principal reasons for the protest, namely, the demand for the recognition of organisation’s legitimacy, and, the demand that detainees be released.  The Tribunal continued:

   “The Tribunal is satisfied that a person who was an organising member of Falun Gong, even if in a city away from Beijing, would know these two grounds for protest.  Although given opportunities to describe what was in the petition which he claimed to have helped to present to the local authorities, the Applicant was unclear on any specifi [sic] ground for protest.  He simply repeated that it should have been legal for Falun Gong to continue with its practices.”

10. The Tribunal accepted that members of Falun Gong face ongoing harassment and perhaps even worse treatment at the hands of the Chinese authorities.  In particular the Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) report which indicated that persons who engaged in Falun Gong exercises in prominent locations, or those whose actions appear to be organised, are more likely to be detained.  The Tribunal concluded this section as follows:

    “Doing these exercises in public can lead to arrest.  However, the Tribunal is not satisfied that the Applicant actually knows what those exercises are.  It is not satisfied that he was a member of Falun Gong, or that he was a member with any organising tasks.  It is not satisfied that he distributed any literature pertaining to Falun Gong.  Consequently it is not satisfied that the local authorities are looking to arrest the applicant and this was what caused him to leave his own country.  Having rejected his claim to be a member of Falun Gong, the Tribunal does not accept his claim that his home has been visited by government authorities looking for him for reasons of his membership of Falun Gong.

    THE APPLICATION FOR REVIEW

11. On 5 September 2000, the applicant filed an application for an order for review in this Court.  In oral argument to the Court he said that the application for review had been drafted by a friend, who recorded the applicant’s objections to the Tribunal's decision.  The application, so far as is relevant, stated:

    “The applicant is aggrieved by the decision because: 

    1.the dicision make me fail to get the protection visa, which lead directly to that I badly worried about where I will live and how I can live my life and how I can support my families.

    2.I have suffered so great meantal pressure in the detainee certre that I cannot concentrate on anything, lost my mememory and feel confusion, even if when I was present before the Tribunnel I could not exactly answer the questiones raised by the delegate, I don't know how long I will stay in the certre and what will happen to me. because If I am forced to go back to china I will be arrested by the Authority of PRC and if I stay here there are still not freedom to me

    3.        so many uncertainties make me feel despared.[sic]

    The grounds of the application are-

    The evidence which was based on to make the dicision is not sufficient to refuse my application.  In fact, firstly I am not only an active member of the Falun Gong but also I have been pursuiting by the PRC police in Yantai from june, 1999.  Secondly, I could not take any documents with me in relation to my case due to The Falun, because if I had taken them I would not had left China and have been arrested by the police.” [sic]

    CONSIDERATION

12. Before the Court, the applicant represented himself and was assisted by an interpreter, who interpreted from and into the Mandarin language.  He was asked by the Court to explain the reasons why he contended that the decision of the Tribunal was wrong.  His response included the following submissions:

13. (1) That the Tribunal used only documents which were disadvantageous to the applicant, and did not consider documents that were advantageous to him.  In relation to this submission, the applicant said that he could not remember which documents the Tribunal could have referred to which were purportedly advantageous to his claims.  He said that he did not have these documents with him because he only received short notice of this hearing, but said that the documents concerned the time at which he arrived in Australia.  It was pointed out that, on this issue, the Tribunal had found in his favour.

14. (2) That he had lost his memory concerning the details of his refugee claims as a result of being in detention, and so was unable to properly present his case to the Tribunal.

15. (3) That he was not able to explain how the Tribunal made errors of law, because he does not know the law of Australia.  He said that he did not understand why he had not been provided with a lawyer who could determine whether the Tribunal had made any errors of law.

16. (4) In response to the question from the Court as to what was wrong with the Tribunal decision, the applicant said:

    “I said yes, they say no.  It is up to your Honour to make a judgment.”

17. (5) The applicant asked whether  it was possible to negotiate with the Government to stay for a few years, and then to return to China if the situation had improved. 

18. (6) That he would be happy to go to New Zealand if he was not allowed to stay in Australia. 

19. (7) That detention was most oppressive, and that he would like to be released.  He offered to do voluntary work if he were so released.

20. It is important for the Court to take into account that the applicant represents himself in these proceedings. Nevertheless, the application must be decided in accordance with the law. The grounds upon which a decision of the Tribunal may be attacked are set out in s 476(1) of the Migration Act 1958 (Cth) (the Act). Some of the grounds set out in the application, and particularly argument number (4) referred to above from the applicant's oral submissions, involve a challenge to the Tribunal's findings on the merits. It is not the function of the Court to review the finding of the Tribunal on the merits.

21. The only matter which might give rise to a ground of review is the reference by the applicant to the effect of detention on his ability to properly formulate his case before the Tribunal.  It may be that in some circumstances the impact of detention is such that the applicant is prevented from properly putting his case at the hearing. 

22. However, after giving this matter careful consideration, I am not persuaded that this is such a case.  What is significant about the applicant's submissions to the Court is that he made no reference to any particular deficiency in the hearing conducted by the Tribunal.  He did not identify any particular issue which caused him difficulty before the Tribunal. 

23. The decision of the Tribunal appears on its face to be careful and comprehensive.

24. I have given consideration to the applicant's reference to not being provided with a lawyer for the purpose of this proceeding.  There is of course no entitlement to pro bono legal representation provided by the state or other persons.  However, it is open to the Court to call upon the pro bono scheme operated by the Victorian Bar to provide for cost-free legal advice and representation to some litigants.  Having read the reasons for decision of the Tribunal and heard the oral submissions of the applicant, I formed the view that this case could appropriately proceed without pro bono legal representation.  No doubt conducting the case through an interpreter gives rise to a need for particular caution.  Where the case is not conducted in English, the Court must be careful not to misconstrue or overlook arguments which applicants wish to put. 

25. Nevertheless, in this case it seems that the response of the applicant to the Tribunal's decision rather confirms the Tribunal’s conclusion.  In particular, it is noteworthy that the applicant did not attempt to identify any specific error in the reasoning of the Tribunal that brought it to the conclusion that he was never a member of Falun Gong.  When invited by the Court to say what was wrong with the decision of the Tribunal, the applicant made no reference to any specific facts attesting to his membership of Falun Gong.  Given the open invitation made by the Court and the initial finding of the Tribunal that the applicant was not a member of the Falun Gong, it is surprising that the applicant did not assert that membership before the Court.

    CONCLUSION

26. The applicant was given generous opportunities to elaborate on the errors which he said the Tribunal committed.  His responses confirmed that the decision of the Tribunal is not open to proper attack.  Consequently, the order of the Court is that the application is dismissed. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             24 November 2000

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr E Heerey
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2000
Date of Judgment:	8 November 2000