NAEB v MIMIA

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FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 719

MIGRATION  – procedural fairness - whether the Refugee Review Tribunal’s findings were open to it – whether Refugee Review Tribunal required to assist applicant to make out their case or claim - whether the Refugee Review Tribunal put fairly to the applicant matters adverse to him - whether the approach or conclusion of the Refugee Review Tribunal was arbitrary, irrational or unreasonable.

Evidence Act 1995 (Cth)

Kioa v West (1985) 159 CLR 550 referred to
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Muin v Refugee Review Tribunal (2002) 76 ALJR 966 referred to
SBBA v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 90 referred to
Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 referred to
Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 referred to
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 referred to
Minister for Immigration and Multicultural Affairs vYusuf (2001) 206 CLR 323 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Minister for Immigration and Multicultural Affairs  v Rajamanikkam (2002) 76 ALJR 1048 referred to

NAEB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1198 of 2002

JACOBSON J
11 JULY 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1198 of 2002

BETWEEN:

NAEB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

11 JULY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.Costs reserved.

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 1198 of 2002

BETWEEN:

NAEB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

JACOBSON J

DATE:

11 JULY 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction:

  1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 17 October 2002 affirming a decision of a delegate of the Minister.  The delegate refused to grant the applicants protection visas on 13 September 2001.

  2. Although the decision of the RRT dealt with an application by a husband and wife, only the husband (“the applicant”) has applied to this Court for review of that decision.

  3. The applicant is a citizen of the Peoples Republic of China.  The applicant claimed to be a practitioner of Falun Gong and, for that reason, to have a well-founded fear of persecution on the ground of imputed political opinion or membership of a particular social group.

  4. The RRT was prepared to accept that…

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Details
Case
[2003] FCA 719
Decision Date

CaseChat Overview and Summary

In the matter of NAEB v MIMIA, the applicant sought a review of a decision by the Refugee Review Tribunal (RRT) which dismissed his application for a protection visa. The applicant claimed to be a practitioner of Falun Gong and alleged that he faced persecution in China due to his involvement in the movement. The RRT found that the applicant was not a reliable witness and dismissed his application on the basis of discrepancies between his written and oral evidence, as well as omissions in his account of his past involvement in Falun Gong.

The legal issues before the court were whether the RRT's decision was lawful, reasonable, and based on relevant considerations. The court was required to examine whether the RRT had identified and addressed the relevant discrepancies in the applicant's evidence and whether it had properly assessed the applicant's credibility and the likelihood of his persecution if returned to China.

The court found that the RRT had properly identified and addressed the discrepancies in the applicant's evidence and had given appropriate weight to those discrepancies in assessing his credibility. The court held that the RRT was entitled to find that the applicant was not a reliable witness and that his claims of past involvement in Falun Gong were not credible. The court also found that the RRT had properly assessed the likelihood of the applicant's persecution if returned to China, taking into account the independent evidence of human rights abuses against Falun Gong practitioners in China.

The court dismissed the applicant's appeal and upheld the RRT's decision to refuse his application for a protection visa. The court reserved costs.

Orders

Orders of the court

1. The application be dismissed.

2. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There were other grounds set out in an amended application and I will deal with those grounds later in my judgment.The Claims and the Evidence The applicant claimed at the hearing before the RRT that he become involved in Falun Gong in 1994 when he attended a class organised by Master Li who is the founder of the Falun Gong movement. The RRT noted that the applicant had not mentioned in his statement filed in support of his protection visa that he had attended a Falun Gong session organised by Master Li. The RRT recorded the applicant’s response was that he did not know what was in the statement. The applicant’s written statement claimed that he took up Falun Gong in 1995 and that since then he had practiced three times a week. However he said that in 1997 the Chinese Government banned the practice of Falun Gong and he was no longer allowed to practice at a cultural centre in China where he had previously practiced. The RRT noted that there was a discrepancy between the applicant’s written and oral evidence as to the date on which the applicant was forbidden to practice at the cultural centre. In his statement he said it was in 1997 but in his oral evidence he said that it was in late 1998 or 1999. The applicant’s written statement described an incident when he was practicing in a park in China and he was put in a police van along with seven or eight other Falun Gong practitioners. The RRT noted that the applicant did not mention this at the hearing and, indeed, had stated that he had never been arrested and had not practiced in public after it was banned. The RRT recorded that the applicant’s response was that he could not tell the RRT everything at the hearing and that the RRT member had told him not to talk in long sentences. The applicant claimed that he was dismissed from his job in China in 1997 because he was spending too much time “propagating” Falun Gong instead of working. The applicant arrived in Australia in July 2000 and told the RRT that he practiced Falun Gong in Sydney at the Chinese Garden at Darling Harbour. He said that the last time he had practiced there before the hearing was about three months ago. He was asked why he had not been to Darling Harbour for three months and he replied that the could not afford the train fare. He said that there were sessions at the Blacktown centre which were closer to his home but they were irregular. As a result, the applicant said he practiced Falun Gong at home. The RRT asked the applicant to provide a letter from the Darling Harbour practice group confirming he attended that group on a regular basis. The applicant said the Falun Gong is not an organisation like that which can provide letters but the RRT member told him that she had seen such letters from other practice groups. The applicant was given a week to provide a letter but no letter was received. The applicant claimed to have received a letter from the Chinese Public Security Bureau (“PSB”) in October 1999, asking him to report to the police station. He said that the letter was sent to an old address but the house had been demolished and although he had received the letter the police were not able to find him.

Decision

Reasons for decision

JACOBSON J
The RRT member also put to the applicant her doubts that he was a committed Falun Gong practitioner as follows:-“I have to tell you that I also have some doubts about your claim to be a genuine and committed Falun Gong practitioner.I can swear if I am not a genuine Falun Gong practitioner, you can punish me with your law.Well it’s not a question of punishing you. Can I just explain to you why I do have some doubts about your commitment?I just want to tell you that I swear if I am not a genuine Falun Gong practitioner, I am willing to be detained in a jail here.When I asked you questions about Falun Gong and what its beliefs are I have to say that I find your answers a bit vague.What were vague. I had try my best to express my concept and my belief to you.I understand that it is difficult to do that when you are speaking through an interpreter.Sometimes I can’t express myself directly. Whether you want to give me the visa or not is another issue. I just want to stay here for a period of time until it’s safer there in China, then I am most willing to go back.I also have doubts about your commitment because of your statement that you have not practiced at Darling Harbour for some weeks now.But I have no money, and I have told you before. I had to spend ten dollars per day to go outside and I am not making any money at the moment.There are Falun Gong exercise sessions all over Sydney. I just can’t accept that there isn’t one closer to you at Blacktown.I can show you that I have been there practicing.At Darling Harbour?Yes.That’s what I was asking you to do when I ask you to get this letter.”The Decision of the RRT The RRT accepted, on the basis of the independent material, that some Falun Gong practitioners in the Peoples Republic of China faced serious human rights abuses. However, the RRT stated that, in order to determine whether the applicant had a well-founded fear, it was necessary to assess his account of his past and present involvement in the Falun Gong movement. The substance of the RRT’s reasons for dismissing the application is to be found in the following passage:-“I did not consider the applicant to be a reliable witness. As noted above, there were a number of significant discrepancies between the statement submitted with his protection visa application, and his oral evidence. These included his failure to mention in the statement that his first contact with the practice of Falun Gong was in an exercise session run by the founder of the movement, Master Li himself, a fact which the Tribunal considers too significant to have been overlooked or mistaken, if it were true; his failure to mention in the statement the claim made in his oral evidence that he had received, in about October 1999, a letter from the PSB asking him to report to the police station in relation to his practice of Falun Gong; and his failure to mention in his oral evidence the incident referred to in the statement which he claimed took place in 1997, when he was arrested along with several others practising Falun Gong and taken to the police station.”

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

Full text does not contain this section.