NAMS v Minister for Immigration - [2003] FMCA 517

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMS v MINISTER FOR IMMIGRATION

[2003] FMCA 517

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – recommendation that Minister consider exercising her power under s.417 of the Migration Act 1958 (Cth).

PRACTICE AND PROCEDURE – Consideration of assistance provided to the applicant by his migration agent – migration agent not appearing on the record – whether agent paid for his services – need for investigation of the agent’s conduct.

Migration Act 1958 (Cth)

Applicant:

NAMS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1043 of 2003

Delivered on:

14 November 2003

Delivered at:

Sydney

Hearing date:

14 November 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Court directs that the transcript of today’s proceedings is to be obtained and forwarded to the Minister for Immigration for appropriate action.
The application is dismissed.
Parties have liberty to apply for an order for costs after the circumstances of the matter have been further considered by the parties.
The Court recommends that the Minister consider exercising her power under s.417 of the Migration Act 1958 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1043 of 2003

NAMS

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 February 2003 and handed down on 27 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claimed religious, or arguably, also political persecution in China as a Falun Gong practitioner.
The background to the proceedings in this Court are set out in written submissions prepared by Mr Kennett, for the Minister. I accept paragraphs 1 through to 8 as an accurate statement of that background and adopt it for the purposes of this judgment:
On 27 February 2003 the RRT handed down a decision which affirmed an earlier decision by a delegate of the respondent not to grant a protection visa to the applicant (court book, page 55).
The applicant is a national of the People’s Republic of China who arrived in Australia in August 2001 and applied for a protection visa on 21 December 2001. That application was rejected by a delegate of the Minister on 12 February 2002. The applicant applied for review of that decision by the RRT on 15 February 2002.
In his protection visa application, the applicant claimed that he was a Falun Gong practitioner and had been held in a “detainment centre” for some time, and pressured to cease practising Falun Gong (court book, pages 21-22). In his evidence to the RRT, however, he said that he had not been arrested or attended any demonstrations and had practised covertly (court book, pages 59-60). He said that he had continued practising in Australia, had been to the Chinese consulate three times and had once distributed a newspaper (court book, pages 60-61). He claimed that if he returned to China he would be arrested because he was a Falun Gong practitioner.
The RRT accepted that the applicant “is in fact an adherent of Falun Gong but that he is a practitioner at a very low level” (court book, page 65). This conclusion was based on his apparently low level of activity and his ability to demonstrate exercises.
Having considered various independent reports, the RRT concluded that the applicant would be able to practise Falun Gong at this level in China without fear of being persecuted by the authorities (court book, page 65). The RRT regarded the country information as establishing that the practitioners who had been arrested were leaders or organisers and those who attended protest rallies; and the applicant did not come within either group (court book, page 66).
Further, the independent information suggested (and the applicant apparently accepted) that practising privately would not amount to a restriction on his ability to practise his religion, since Falun Gong doctrines did not require practise to be in public (court book, page 65-66).
The possibility that the applicant might become involved in protest activities in China was, in the RRT’s view, “remote and insubstantial” (court book, pages 66-67). Even if he did become so involved, in the RRT’s view he would not face anything more serious than brief detention and questioning (court book, page 67).
The RRT was therefore not satisfied that the applicant had a well founded fear of persecution in China. It followed that the RRT was not satisfied that she was a person to whom Australia had protection obligations under the Refugees Convention.
An application to review the decision of the RRT was filed in the Federal Court on 1 April 2003 and supported by an affidavit filed on the same date. On 30 April 2003, His Honour Allsop J transferred the proceedings to this Court. At the outset of the proceedings, the applicant stated that he had not received the green book prepared by the solicitors for the Minister. It transpired that the green book had been sent by letter dated 27 May 2003 to the address for service given by the applicant in the application. In order to get to the bottom of the matter, I took oral evidence from the applicant. It transpired that the address for service on the application was not the applicant's address, but the address of his migration agent who had been his authorised representative for the purposes of his visa application. The applicant also told me that he had paid the migration agent $800 for his services in relation to the appeal to the Court from the decision of the RRT.
The applicant told me that he subsequently filed a notice of change of address for service on 29 July 2003 on the advice of his migration agent. The applicant told me that his application and his affidavit in support had been prepared by his migration agent. He further told me that although his name appears on the affidavit above the heading, “deponent”, that he did not write his name. The implication is that it was written by someone else. The applicant believes that the migration agent is a legal practitioner, but it has not been possible today to verify that.
The migration agent did not appear on the record of the proceedings as acting for the applicant. Because of my concern about these circumstances, I have directed that the transcript of today's proceedings be obtained and provided to the Minister with a view to the Minister considering appropriate action.
The application contains, essentially, two grounds. The first is that the RRT found that the applicant had fabricated claims about his continuing problems with the authorities due to his association with Falun Gong. The applicant asserts jurisdictional error in relation to that finding. In fact, no such finding was made by the RRT. The RRT found that the applicant had exaggerated somewhat his involvement with Falun Gong. The presiding member noted that the applicant was unable to demonstrate accurately two Falun Gong exercises. However, the presiding member accepted that the applicant was and remains a Falun Gong practitioner, albeit at a low level.
Those findings were reasonably open to the RRT on the material before it, and I see no jurisdictional error in those findings.
The only other ground in the application is that the RRT failed to accept the applicant's claim that he is a genuine Falun Gong practitioner. The application also asserts that the RRT finding that any prospect of adverse attention from the authorities on the basis of Falun Gong activity was remote is vitiated by jurisdictional error. As I have already noted, the RRT did not fail to accept the applicant's claim that he is a genuine Falun Gong practitioner. It did find that there was no real risk of persecution of the applicant should he return to China because he was only a low-level practitioner.
The RRT found that the applicant had not been politically active as a Falun Gong practitioner in China and had only practiced at home. The RRT found that provided that the applicant continued only to practice at home in private he was not at any serious risk. In reaching that conclusion, the presiding member relied upon country information and, in particular, the presiding members refers to a report from the Australian Department of Foreign Affairs and Trade dated 4 February 2000 (court book, page 66).
However, the Presiding Member also referred to other country information which was more recent which indicated a deteriorating situation for Falun Gong practitioners in China. On page 65 of the court book the presiding member quoted from a US State Department report prepared in 2002 as follows:
After the January 2001 self-immolations of five individuals claiming to be Falun Gong practitioners in Tiananmen Square, the Government initiated a comprehensive effort to round up practitioners not already in custody, and sanctioned the use of high pressure indoctrination tactics against such individuals in an effort to force them to renounce Falun Gong. Neighbourhood committees, state institutions (including universities), and companies reportedly were ordered to send all known Falun Gong practitioners to intensive anti-Falun Gong study sessions. Even practitioners who had not protested or made other public demonstrations of belief were forced to attend such classes. Those who refused to recant their beliefs after weeks of intensive anti-Falun Gong instruction reportedly were sent to reeducation-through-labour camps, where, in some cases, beatings and torture were used to force them to recant their beliefs. These tactics reportedly resulted in large numbers of practitioners pledging to renounce the movement.
The RRT also had before it a report prepared by Human Rights Watch headed, “Dangerous Meditation” (court book, page 129). It includes a chronology of actions by the Chinese authorities against Falun Gong practitioners. On page 151 of the Court Book the report states:
As of December 2001, there was reason to believe that Falungong was having a hard time keeping its movement alive. China, using an array of legal and extra-legal tools had completely shut down public practice and demonstrations by Falungong adherents. Practice at work units was further curtailed. Some units had always summarily fired known practitioners, with job loss often meaning lost housing, lost schooling, lost pensions and a report to the police. Other work units, especially those far removed from Beijing, had for a time overlooked solitary exercise and meditation until controls were tightened nationwide after the January 2001 deaths. Although followers presumably could continue with solitary practice at home, even private practice proved dangerous when it was brought to the attention of the police or to Party officials.
Those appear to me to be the most recent relevant assessments in the country information. The applicant told the RRT that he faced a serious risk of harm because, although he only practised privately, he used tapes to do so and there was a high risk of his practice being detected. He feared that he would be detected by his neighbourhood residents committee and reported. He comes from Beijing, where it would seem that risk would be significant.
In the circumstances, there is a real question about the correctness of the assessment of the RRT whether the applicant faces a risk of serious harm if he returns to China and continues to practice Falun Gong. However, I cannot identify any jurisdictional error committed by the RRT related to that issue. The proceedings before the RRT were procedurally fair. The applicant was given a reasonable opportunity to put his claims to the RRT and he was listened to.
The RRT had before it relevant country information and took that country information into account, including the information which pointed to the deteriorating situation for Falun Gong adherents. Although the conclusion reached by the RRT about the level of risk faced by the applicant is questionable, it is not vitiated by jurisdictional error. However, the concern that I have about the conclusion reached by the RRT is sufficiently strong to warrant, in my view, a recommendation to the Minister that she consider the matter with a view to considering whether she should substitute a more favourable decision. The Minister has the power, under s.417 of the Migration Act 1958 (Cth) (“the Migration Act”), to substitute a more favourable decision should she so wish. This Court has no jurisdiction over the exercise of that discretion by the Minister. I can, however, make a recommendation.
I will therefore order that the application is dismissed; the transcript of today's proceedings is to be obtained and provided to the Minister with a view to her considering whether any action should be taken in relation to the applicant's migration agent. The Court recommends that the Minister consider exercising her power under s.417 of the Migration Act.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 November 2003