Deng v Minister for Immigration and Multicultural Affairs

[2001] FCA 395

FEDERAL COURT OF AUSTRALIA

Deng v Minister for Immigration & Multicultural Affairs [2001] FCA 395

WEI XIONG DENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N1268 OF 2000

MADGWICK J
28 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1268 of 2000

BETWEEN:	WEI XIONG DENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	28 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1268 of 2000

BETWEEN:	WEI XIONG DENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	28 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for the limited form of judicial review provided by the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed a decision of a delegate of the respondent Minister refusing to grant to the applicant a protection, class XA, visa. The matter turns of course upon whether the applicant was a refugee as defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

   Applicant’s case

2. The applicant, a national of the People's Republic of China, arrived in Australia on 9 May 2000 and eight days later lodged an application for a visa in which he claimed, in effect, refugee status. 

3. The applicant’s case is that he participated in the activities of the Falun Gong movement, which apparently advises the practice of fitness and/or self-help discipline or technique.  His case was that, following the declaration of Falun Gong as illegal by the

   
   
   

   Chinese government and the disciplinary action taken by the government against some Falun Gong members, he fears investigation, interrogation and possibly detention if he returns to China because of his involvement in the past in Falun Gong, the practice of Falun Gong being now forbidden.  The Tribunal member established that “[h]e had no other fears in relation to Falun Gong or anything else.”

4. The position in China seems to be that, as found by the Tribunal member, until April 1999 the Chinese authorities regarded Falun Gong as nothing more than a group of traditional meditation and martial arts practitioners whose techniques were, as it were, assembled under the aegis of some kind of unifying doctrines which were not thought to have any political significance.  However, there was a protest in April 1999 at the government's then effort to stamp out Falun Gong.  Falun Gong was thereafter seen by the Chinese government as a threat to security, and a dangerous movement with the leader based in the USA, and having the ability to direct his followers from outside China.  The government stepped up its opposition to the movement and in June 1999 it ordered Communist Party members and civil servants to leave Falun Gong and had the state media propagandise against Falun Gong, branding it as a cult pursuing superstition and "jeopardising social stability".  Ultimately Falun Gong was "officially banned" by government decree on 22 July 1999 and arrests and detentions occurred.  In addition a large number of Falun Gong practitioners were questioned.  The Australian Department of Foreign Affairs and Trade assessed the position as being that, as the Tribunal Member put it:

   “Ordinary followers who come to the attention of the authorities … will be lectured on the error of their ways and the social damage caused by Falun Gong [but] are unlikely to be the subject of particular attention by the authorities.”

   The Tribunal’s decision

5. The Tribunal member accepted that the applicant practised Falun Gong from about 1997 and that, after its ban, he continued to practise the exercises secretly.  It seems that he practises such exercises in Australia, mostly at home alone.  However, the Tribunal did not accept that the applicant had been involved, as he claimed, in any public celebration, exercise, demonstration or debate about Falun Gong in China, nor that, as he had claimed, he was a secretary to a local Falun Gong leader, nor that he had any other leadership or organisational role in the Falun Gong movement.

6. The Tribunal member noted that the applicant's elderly mother was also a Falun Gong practitioner and that she had had "no major problems as a result or for any other reason".  It appears that the applicant had never been himself questioned by the authorities about his Falun Gong activities before he left China.

7. The Tribunal member concluded that the Chinese authorities lacked interest in the applicant or his mother and that he could continue to practice Falun Gong in China at home alone as he had mostly done in Australia without fear of persecution.  Overall, the Tribunal member concluded that the applicant was not at risk of persecution for a Convention reason in relation to his Falun Gong activities.

   Conclusions

8. The applicant is unrepresented.  His application for review refers to various matters of fact and also alleges bias, as I understand it, on the part of the Tribunal member.  The applicant did not file any written submissions and when asked at the outset of the hearing whether he wished to say anything he said "not much" and indicated that he was content to limit himself to what was contained in his application for review.  Subsequently he indicated a wish to make some submissions and referred to other matters of fact.  It is apparent that he does not understand that it is only a limited class of legal matters which can bring about an order from this Court that might alter the Tribunal's decision.

9. No doubt against the prospect that the Court might, if not minutely at least carefully, examine the Tribunal’s decision to see whether there might be found on the face of it any legal difficulty, Mr Johnson who appears for the respondent Minister has furnished detailed submissions.  I have in fact examined the material as best I can to try to avoid any injustice, according to law and which would be justiciable in this Court, occurring.  I see no sign of any such injustice.

10. In relation to the allegation of bias, it is enough to say that there is not the faintest basis for the suggestion of it and I reject it. 

    Disposition

11. In my view there is no legal error disclosed by the Tribunal’s decision or arising from any of the written or oral material offered by the applicant.  Accordingly, the application will be dismissed.  The applicant is to pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 April 2001

Applicant appeared in person.
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 March 2001
Date of Judgment:	28 March 2001