NAMQ v Minister for Immigration
[2004] FMCA 9
•29 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMQ & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 9 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China due to the practice of Falun Gong – whether the Tribunal proceeding was fair, whether the Tribunal applied the correct principles – possible factual error in the Tribunal decision – no reviewable error found. |
Migration Act 1958 (Cth), ss.91R, 417
Minister for Immigration v Guo (1997) 191 CLR 559
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Sinnathamby v Minister for Immigration (1986) 66 ALR 502
First Applicant: Second Applicant: | NAMQ NAMR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1217 of 2003 |
| Delivered on: | 29 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1217 of 2003
| NAMQ, NAMR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 14 February 2003 and handed down on 6 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are a husband and wife from China. The applicant wife claimed a protection visa on the basis of a fear of persecution arising out of her practice of Falun Gong. The applicant husband claimed a protection visa by reason of his association with his wife.
The applicants arrived in Australia from China on 8 March 1997. They lodged an application for protection visas on 10 August 2001, which was refused by the delegate on 20 September 2001. The applicants then applied to the RRT for review of that decision.
The applicant wife claimed that, although she and her husband had left China before the government had proscribed Falun Gong, she had lost her allocated house and her employment and that when she approached the Chinese Consulate-General in Sydney to extend the applicants’ passports, they were required to write letters of confession and repentance. They refused to do so and their passports were not extended.
The RRT found that the applicant wife had never been involved in Falun Gong in China and that she had adopted the practice of Falun Gong in Australia in 2001 to enhance her claims to a protection visa: court book, page 225.9. The presiding member reasoned that if the applicant had begun to practice Falun Gong in China in 1992 as she claimed, then it would have been reasonable for her to have continued with the practice upon her arrival in Australia in 1997 and it would have been reasonable to expect her to be at the forefront of protests against the crackdown of Falun Gong in China in 1997: court book, page 225.8.
The RRT did not accept the applicant husband as a credible witness and gave no weight to his evidence: court book, page 228.2. The applicant husband had made a return visit to China and claimed to have been questioned about his wife and beaten. This evidence was completely rejected. The RRT also found that documents presented by the applicants did not support their claims.
The applicants rely upon an amended application filed on 29 May 2003. The grounds of the application are:
a)the RRT applied the test of what constituted a refugee at the time that the primary application was lodged, rather than the time at which it was making its decision;
b)the RRT denied the applicants natural justice in that it relied on material without giving the applicants the opportunity to comment upon it;
c)the RRT failed to apply the principle of non-refoulement contained in the International Convention on the Status of Refugees; and
d)the RRT failed to treat the applicants fairly.
Reasoning
I agree with and adopt Mr Smith’s written submissions concerning the first ground of review:
The first ground in the amended application misunderstands the RRT’s findings. In finding that the applicants’ involvement in Falun Gong in Australia only dated from 2001 the RRT was not applying the test of what constituted a refugee at that time; rather, it was simply making findings of fact as to past events so that it had some basis for considering what was likely to happen in the future: Minister for Immigration v Guo (1997) 191 CLR 559. The RRT did not treat the applicants’ claims from 1997 to be determinative of the issue at all. What it considered to be determinative of the issue was whether or not the applicant wife was a genuine practitioner or whether, as it indeed found, she had simply commenced her practice of Falun Gong in order to raise a claim for refugee status.
The claim of a denial of natural justice (procedural fairness) is based in the application upon a assertion that the RRT relied upon material contained in the court book between pages 231 and 326 without giving the applicants an opportunity to comment upon that material. The assertion assumes that the material was relied upon by the RRT and that it was adverse to the applicants’ claims. The material was country information about Falun Gong. The RRT decision was based upon adverse findings of credibility against the applicants. In part, the adverse findings of credibility against the applicant wife were based upon questions put to the applicant wife at the RRT hearing about her practice of Falun Gong in China. However, it does not appear to me that the country information formed any significant part of the adverse findings of credibility made against the applicants. Neither is it apparent to me that there is anything in the country information adverse to the applicants’ claims.
Nevertheless, at the hearing before me, the applicant wife asserted that procedural unfairness would be apparent from a reading of the transcript of the RRT hearing. In the circumstances, I gave the applicant wife the opportunity to submit a verified transcript. I also gave her the opportunity to file additional written submissions about what was in the transcript. The applicants filed additional written submissions on 12 December 2003. However, the applicants have not filed a transcript of the RRT hearing. Rather, the applicants’ additional written submissions contain what purport to be short extracts from the transcript. These are unverified and the language of them makes me dubious about the accuracy of the purported transcriptions. In any event, upon my reading of the extracts, there is nothing in them to substantiate a claim of procedural unfairness.
It is apparent from the court book that the RRT presiding member put information and suggestions to the applicant wife which was contrary to her claims: court book, pages 217.7, 218.7‑9, 219.3 – 9, 220.10. The presiding member may not have put explicitly to the applicants that she was minded to make an adverse finding on the credibility but I do not think that she was under any obligation to do so: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; Sinnathamby v Minister for Immigration (1986) 66 ALR 502 at 505-6 per Fox J. This ground of the application also fails.
I agree with and adopt in part Mr Smith’s submissions on the third and fourth grounds of review as follows:
The third ground, relating to non-refoulement is misconceived. The obligation not to refoule under Article 33 of the Convention[1] only applies to refugees. If a person is not a refugee then there is no obligation not to refoule that person. The RRT in this case was not satisfied that the applicants were refugees and was entitled on the basis of that finding to conclude that these were not people to whom Australia owed protection obligations, one of those obligations being the obligation not to refoule.
The fourth ground is misconceived. First, the RRT did not base its findings on the fact that the applicant wife had left China in 1997 on her own passport. While the RRT suggested to the applicant wife at the hearing that this would have meant that the Chinese authorities had no adverse interest in her: court book, page 217.8, this question had no part to play in the RRT’s findings. The critical fact was that the applicant [was found by the presiding member to have] had no evidence to suggest that she practiced Falun Gong in Australia between 1997 and 2001 despite the fact that the Chinese government’s crackdown on Falun Gong practitioners in China was in 1999. Second, the applicant wife did not claim that she commenced practicing Falun Gong in 1997 but rather that she gradually got involved in Falun Gong after her father had been introduced to it in 1992: court book, page 30.10. The cogent reason for rejecting the claim in any event was the vast disparity between the evidence adduced to support the applicant’s involvement since 2001 and the evidence adduced to support her involvement prior to that time. After 2001, as the RRT noted, the applicant provided an almost daily account of her activities and substantial photographs: court book, page 225.3. [The presiding member found] nothing of that nature in relation to her involvement prior to 2001. Third, the question of delay in applying for a protection visa is relevant to the credibility of claims. The argument put in paragraph 4(c) of the amended application simply goes to the merits of the finding fourth, this claim too goes to the merits. Fifth, the RRT is entitled to reject corroborative evidence on the basis of the credibility of the applicant: Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 77 ALJR 1165.
[1] Article 33 provides:
However, there was evidence advanced by the applicant supporting her claim of Falun Gong involvement prior to 2001. At the hearing before me, the applicant wife drew my attention to a photograph appearing at page 154 of the court book. This purports to be a photograph of the applicant wife with a group of other people in Harbin in Manchuria at a Falun Gong conference in November 1996. I asked the interpreter to read the Chinese characters on a banner held by the people in the photograph and he told me that the banner says “Falun Dafa” and “Falun Gong”. The photograph includes a woman who resembles the applicant wife and the people are wearing warm winter clothing consistent with the climate in Manchuria in November. The photograph does tend to corroborate the applicant wife’s claim of having been involved with Falun Gong practitioners before leaving China in 1997.
The presiding member dealt with the photographs at page 225 of the court book. The presiding member said:
The applicant alleges that she has been involved in Falun Gong since her arrival in Australia in early 1997, however, her account of her activities – which provides an almost daily account of her activities – dates only from February 2001. The applicant has also submitted to the Tribunal a substantial photographs [sic] of the applicant engaging in Falun Gong activities in Australia – only dating from May 2002 [namely, after the initial refusal by the Department of Immigration]. The applicant has provided no evidence of any involvement in Falun Gong before 2001 – including any protest activities following the crackdown of Falun Gong by the PRC government in July 1999.
The presiding member was concentrating on the lack of corroborative evidence of the applicant wife having been involved in Falun Gong activities in Australia between her arrival in 1997 and 2001. The presiding member appears to have overlooked the corroborative evidence of the applicant having been involved with Falun Gong in China prior to her departure in 1997. This casts doubt on the factual accuracy of the presiding member’s conclusion (court book, page 225) that the applicant was never involved with the Falun Gong in China.
It appears plausible that the applicant was in fact a Falun Gong practitioner in China in 1996. That does not necessarily detract from the presiding member’s finding that the applicant wife did not become involved with Falun Gong in Australia until 2001, and that she did so to support her protection visa claim. I see no legal error in the presiding member’s reliance upon s.91R(3) of the Migration Act. This issue could be further investigated by the Minister should she choose to exercise her power under s.417 of the Migration Act 1958 (Cth). That is beyond the scope of these proceedings.
The grounds advanced by the applicants do not establish jurisdictional error. The decision of the RRT is a privative clause decision. I will therefore dismiss the application with costs, which I fix in the sum of $5,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 January 2004
Prohibition of expulsion or return (refoulement)
1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
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