NANX v MIMIA

[2004] HCATrans 99

[2004] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S443 of 2003

B e t w e e n -

NANX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 2.08 PM

Copyright in the High Court of Australia

NANX appeared in person.

MR R.J. BROMWICH:   I appear for the respondent, your Honours.  (instructed by Clayton Utz)

GUMMOW J:   Is there an interpreter in Court?

THE INTERPRETER:   I am the interpreter.

GUMMOW J:   Yes, madam, would you go in the box, please.

FEN CHUAN TSAI, affirmed as interpreter:

GUMMOW J:   Will you ask the applicant whether he wishes to say anything in addition to what is written in the submissions which we have and which we have read?

NANX (through interpreter):   I would like to reflect my situations to you today.

GUMMOW J:   Very well.

NANX (through interpreter):   Your Honourable Judges, I appreciate you again for giving me another chance.  I know that my ability to express myself is not that good and I do have financial difficulties to engage a solicitor.  I can only express myself with sincerity.  I believe that everyone is equal before the law and everyone will get fairness. 

From the Migration Department to the Federal Court every procedure was set down according to what it was thought, during which time I did not grab the chance.  I was only focusing on practising Falun Gong.  I believe that was not a false Falun Gong.  I suffered quite a lot inside.  I was ashamed to face my master.  I was ashamed to face the other disciples.  I feel sorry for those people who were the victims of the crackdown by the Chinese Government.  These people are amounting to 971.  Falun Gong is a famous and good practice.  It directs people to kindness and morality, because the whole society is affected by bad things.  So the thoughts and morality of human kind have been degenerated, but through practising this Falun Gong, we can get rid of all those bad things.

China is a big country.  It is totally different from what we were practising here in Australia.  We cannot judge the Chinese Government by our mere thought.  Falun Gong is quite a new phenomenon in China.  Until this day, the authorities are still thinking of channels to crack down Falun Gong.  They persecuted them and there was no precedence for Falun Gong practitioners to flee the country.  At the beginning when the authorities was cracking down Falun Gong they did not expect what would happen then.

The Falun Gong practitioners, they had affected the PSB – Public Security Bureau in China.  They have talked them into not to torture Falun Gong practitioner.  Some Falun Gong practitioners have some connections with the Chinese Government officials.  The persecution was the policy made by the Chinese authorities.  In fact, only a few numbers of Falun Gong practitioners will be able to escape China, to flee – to avoid persecution.

However, it is getting more and more difficult to flee China.  Even for…..who wish to go overseas had to get clearance that they had not practised Falun Gong.  Sometimes when we saw these practitioners practising Falun Gong at the park we would follow them and practise and then we would be deemed as Falun Gong practitioners.  In fact, things were not this simple.  To practise Falun Gong physically was only part of practising Falun Gong.  For a genuine Falun Gong practitioner, Falun Gong is a new kind of thing to experience.  It is significant to human being.  It has a big…..in this universe.  Everyone who practise Falun Gong would change their view of this world.

GUMMOW J:   Now, Madam Translator, would you tell your client that what he is saying is not really to the point.  The point is whether there are any grounds of error in the judgment of the Federal Court which is sufficient to attract our intervention.  Will you explain that to him?

NANX (through interpreter):   I think they were wrong in believing that the reason I can get my – the fact that I can get my passport was because I had not suffered any persecution in China.  If Chinese practise the same way like we practise here in Australia, then this kind of persecution would not have happened.

We cannot judge the Chinese Government on what we perceive about them.  There was no precedent of Falun Gong practitioner being able to flee the country before the crackdown.  Even the legal practitioners and the judges and the government officials they have sympathy for these practitioners.  So at the beginning when the crackdown took place, the authorities did not expect that Falun Gong practitioners would flee the country.  Since the action occurred in Tiananmen Square, which was on 31 January 2001, when the Chinese Government making of this as an excuse to escalate its crackdown on Falun Gong practitioners in a big scale.

Since then it had become more difficulty for Falun Gong practitioners to flee the country.  They also mention that we can practise Falun Gong privately or move to another province and practise publicly.  I would like to explore this.  When the people in Australia saw Falun Gong practitioners – practitioner practising Falun Gong, they thought this is the whole contents of Falun Gong.  However, the physical exercise was only part of Falun Gong.  For a genuine Falun Gong practitioner, to practise Falun Gong is a new trend of living.  It is meaningful in terms of living.  After practising Falun Gong, you would change your view of this world, and for the Falun Gong practitioner it is ‑ ‑ ‑

GUMMOW J:   I think this has already been said.  I think it is just repetitious.

NANX (through interpreter):   I was only disputing them who said that the fact that I could flee China was because I was not suffering from any persecution.  They had also mentioned about the organisations of Falun Gong.  Those people – those Falun Gong practitioners who were arrested by the authorities includes all walks of life.  Among them there were professors and uneducated women from rural area and also people who suffer from polio.  In fact, Falun Gong is not a well‑organised group, so there was nothing like having a leader.  So there is no leader in Falun Gong organisation. 

Personally, after a short period of practising Falun Gong, I do get a benefit from it.  People can tell that I had benefit from Falun Gong from their…..so they ask me to teach other people.  Because of the practising Falun Gong your sense of morality would – it is raised, and then you will feel like doing good things and you will not do any evil things.  This is my personal experience.  I pursue my own belief.  So I have to let you know of this.  Wherever I go I would get this good information across.

After my arrival in Australia, anyone whom I have encountered, I will pass this good information to them, even people who are born Christian.  If they are physically not good, I would teach them this exercise, Falun Gong, and after that they would become healthy, particularly for people who are suffering from allergy and sinus, or people who was so busy that they have problem with their intestine.  I would teach them and by practising this they will become very healthy.  For those who were heavy smokers or alcoholic or gambler, they would become good people after practising Falun Gong.  This is all that I want to say.  Yes, this is it.

GUMMOW J:   Thank you.  Sit down, please.  We do not need to call on you, Mr Bromwich. 

The critical portion of the reasons of the Federal Court appears from the penultimate paragraph in the judgment of Justice Gyles.  There are insufficient prospects of success of any appeal from that judgment.  Accordingly, special leave is refused.  Do you ask for costs? 

MR BROMWICH:   I do, your Honour. 

GUMMOW J:   Yes, refused with costs.  You translated that to your client? 

THE INTERPRETER:   Yes. 

GUMMOW J:   Thank you, Madam Translator. 

AT 2.29 PM THE MATTER WAS CONCLUDED