NAUW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1086

FEDERAL COURT OF AUSTRALIA

NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086

MIGRATION – protection visa application – appellant claimed to be Falun Gong practitioner – Refugee Review Tribunal relied on a list of businessmen forming a business delegation to Australia of which appellant was one – where list pre-dated appellant’s claimed Convention related catalyst for coming to Australia – where list not provided to appellant – whether failure to provide list involved contravention of s 424A of Migration Act 1958 (Cth) – Refugee Review Tribunal provided alternate reasoning accepting the appellant was a Falun Gong practitioner – where Tribunal found appellant would be able to practise Falun Gong in secret or in the privacy of own home – where Tribunal failed to ask itself the correct questions

Migration Act 1958 (Cth) s 424A

NAUW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 262 OF 2005

MOORE J
12 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 262 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAUW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as a respondent.

2.The appeal be allowed.

3.The orders of the Federal Magistrate in proceedings SYG2575 of 2003 be set aside and, in lieu thereof, it be ordered that:

a.The decision of the Refugee Review Tribunal of 27 June 2003 be quashed.

b.The matter be remitted to the Refugee Review Tribunal to be determined according to law.

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	NSD 262 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAUW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	12 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This judgment concerns an appeal from a judgment of a Federal Magistrate of 2 February 2005.  The appellant applied for a protection visa on 15 April 2002 and, on 27 August 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the appellant a protection visa.  The appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal").  On 27 June 2003 the Tribunal affirmed the decision of the delegate.  Its reasons for that decision were handed down on 24 July 2003.  The appellant then sought judicial review of that decision in the Federal Court and on 17 November 2003 the matter was transferred to the Federal Magistrates Court.  A Federal Magistrate dismissed the appellant's application for judicial review.  The appellant appeals against that judgment.

   Background

2. The following is a summary of the appellant's claims for a protection visa taken from the reasons for decision of the Tribunal.

3. The appellant, a citizen of the People's Republic of China, arrived in Australia on 3 April 2002 on an Australian Temporary Business Visa.  On 15 April 2002, he applied for a protection visa, claiming to fear persecution by Chinese authorities on the basis of political opinions imputed to him because of his adherence to Falun Gong. 

4. The appellant became a member of Falun Gong in January 1999.  He had experienced poor health and heard of the healing power of Falun Gong.  Three months after commencing its practice, the appellant was cured.  He dedicated himself completely to Falun Gong, and his devotion to the movement was strengthened by the government's unfair treatment of those who practiced Falun Gong.  He devoted himself to promoting Falun Gong. 

5. Twenty-one Falun Gong members proposed to meet at the appellant's company on 25 February 2002 to plan a demonstration to protest the recent detention of Falun Gong members by the Harbin Public Security Bureau ("Harbin PSB").  Soon after that meeting commenced, the appellant was warned that the Harbin PSB were sending police to arrest those at the meeting.  The meeting was cancelled.  On arriving at their homes, two of the members were visited by police officers and questioned.  To avoid arrest, the group did not meet for some time.  The appellant decided to apply for a visitor’s visa to travel to Australia.  After being granted a visa on 12 March 2002 to enter Australia, a meeting was called to plan a further demonstration for 27 March 2002.  The meeting took place at a restaurant, ostensibly as a birthday celebration.  However, the police attended the restaurant, surrounded the group and they were taken to the police station where they were questioned and then released.  The members were under surveillance and in danger of being arrested.  Six members, including the appellant, decided to leave China as soon as possible.  They came to Australia, arriving on 3 April 2002. 

   The decision of the Tribunal

6. The Tribunal wrote to the appellant on 9 May 2003 informing him it was unable to make a favourable decision on the material before it and invited the appellant to attend a hearing on 26 June 2003. The precise terms of the letter will be discussed later. The appellant had appointed his migration adviser as his authorised recipient and a copy of the hearing invitation was also sent to the appellant at his home address. Again, the precise terms of the letter will be discussed later. On 24 June 2003 an officer of the Tribunal attempted to contact the appellant's adviser by telephone but was unsuccessful. The appellant's adviser did not return the Tribunal's telephone call. On 24 June 2003 the Tribunal unsuccessfully attempted to contact the adviser by phone. The Tribunal confirmed the Department for Immigration and Multicultural and Indigenous Affairs had no later addresses or telephone numbers for the appellant. The appellant did not appear at the hearing before the Tribunal. The Tribunal determined the appellant's application under s 426A of the Migration Act 1958 (Cth) ("the Act").

7. The Tribunal identified three difficulties it had with the appellant's claims.  First, the Tribunal was not satisfied the appellant knew anything of the Falun Gong movement, philosophy or exercise regime and was not satisfied he was a genuine Falun Gong practitioner.  Secondly, the Tribunal found it implausible that the appellant, who held a senior position in his company and was probably on a reasonable salary, practiced Falun Gong during the period of 2001 and 2002 when the Chinese Government's crackdown on Falun Gong was in 'full swing'.  Thirdly, the Tribunal considered the appellant had decided to travel to Australia before the incident on 25 February 2002, rather than the incident being the catalyst for his decision to leave China for Australia.  The Tribunal noted (at [37]) that:

   …from information supplied to the Australian Embassy in Beijing (which I accept) by HLJ Aust – China Pty Limited on or about 7 February 2003 the Applicant was included on a list of Chinese businessmen invited to be part of … a delegation to visit Australia in April 2001. (emphasis added)

8. The reference to April 2001 is almost certainly an error and it should be April 2002.  Otherwise the Tribunal's reasoning makes little sense.  The Tribunal went on to evaluate the appellant's claims (at [39] and following):

   The evidence supplied to the Australian Embassy in Beijing satisfies me that the Applicant was not leaving China in fear of persecution because of his adherence to Falun Gong but was leaving China with the blessing of his employer on a genuine business trip.  I do not accept that it is plausible that the Board of Directors or senior management of the Applicant's company would in early 2002 assist known Falun Gong practitioners to leave China.

   Also implausible is, with all the arrangements having been made by the Applicant's employer, that the Applicant would hazard his position with the company and his personal safety on anti government demonstrations against Falun Gong when many reports suggest that by late 2001 the Chinese authorities had effectively suppressed Falun Gong as an active and visible organisation within China with the only protests being carried out by visitors to China  (…).

   Given the claims of the Applicant in the statement made in support of his primary application as to the harshness of the crackdown of the Chinese authorities on Falun Gong and the independent information to which I have referred, I cannot accept as either plausible or truthful the claim that the group of which the Applicant claims to have been a member planned to organise "a parting demonstration" in late March or early April in 2002 when the Applicant must already have had his airline ticket for a departure on 2 April 2002.

   Having rejected the evidence of the Applicant that his group contemplated a pro Falun Gong demonstration it follows that I also reject the claims of the Applicant that the purpose of gathering at the restaurant on 27 March 2002 was to plan a Falun Gong meeting and that during their meal the group were detained and questioned by the local PSB.  I find these claims to be a fabrication.

   Even if I were wrong in rejecting the claims of the Applicant that he is an adherent of Falun Gong and with respect to his detention by the PSB on 27 March 2002, the fact remains that there was insufficient evidence to detain the Applicant for more than a few hours and the proposed demonstration was never held.  Thus there was no reason why the Chinese authorities either at the time the Applicant left China or in the foreseeable future would have any adverse interest in the Applicant. 

   I am not satisfied that the Applicant has ever suffered any mistreatment in the past at the hands of the Chinese authorities because of his involvement with Falun Gong.

9. The Tribunal noted the appellant left China on a passport issued in his own name and after undergoing rigorous security checks. 

   Judgment of the Federal Magistrate

10. Before the Federal Magistrate the appellant said he had never received the hearing invitation. The only evidence before the Federal Magistrate was the court book. The Federal Magistrate found, probably erroneously, the court book established that the invitation sent to the appellant's migration agent was returned to sender. The Federal Magistrate noted the other attempts made by the Tribunal to contact or find another method of contacting the appellant and found that it was open to the Tribunal member to have proceeded pursuant to s 426A of the Act.

11. The appellant relied on four grounds which he asserted amounted to jurisdictional errors.  None was particularised.  In brief, they were that the Tribunal had ignored certain claims of the appellant, ignored relevant material, reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation.

12. The Federal Magistrate found the Tribunal's finding that the appellant was not a genuine Falun Gong practitioner was open to it.  His Honour found that it was understandable for the Tribunal to have formed an adverse view of the appellant's credibility given the list provided to the embassy.  His Honour also found that it was reasonably open to the Tribunal to find that "the appellant's claims about a crackdown by the Chinese authorities in March or April 2002 were unlikely to be true".

13. His Honour found that no claims were overlooked by the Tribunal and that the proceedings before the Tribunal were fair.  His Honour found no jurisdictional error and dismissed the application.

    The appeal and its disposition

14. In his appeal to this Court, the appellant relied on the following grounds:

    (1)The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

    (2)The decision involves errors of law.

    No particulars were provided.

15. During the hearing before this Court two issues were identified.  This occurred at a hearing on 21 April 2005.  The matter was adjourned until 24 May 2005 to enable counsel for the Minister to obtain evidence concerning the first issue.  The first issue concerned the notices sent to the appellant and his migration agent in May 2003, advising of the hearing scheduled for 26 June 2003.  The relevant evidence was as follows.  In the court book was a letter from the District Registrar of the Tribunal informing the recipient of the letter of the hearing on 26 June 2003.  The name and address of the addressee at the top of a letter was:

    [Name of appellant]

    c/- JMIT
      528/368 Sussex Street
      SYDNEY NSW 2000

    After the signature block, there was a reference to enclosures (a "response to hearing invitation" form and a brochure about what is a hearing) then the following appeared at the foot of the letter:

    Sent to: Jack Meng
      Jack Meng Immigration & Translation
      Suite 528 Pacific Trade Centre
      368 Sussex Street
      SYDNEY NSW 2000
               cc:      Applicant as addressed
    [address of appellant]

    This letter was stamped with a Tribunal stamp as being "Received: 25 Jun 2003".  Jack Meng was the appellant’s migration adviser.  Also in the court book was a photocopy of an envelope addressed to the appellant with a "return to sender" sticker stuck over, and obscuring, the address.  However, counsel for the Minister tendered the original of the envelope.  It is clear, by holding the envelope up to the light (revealing what was under the sticker), that this envelope was addressed to the appellant at his residential address.  Also in the court book was the application for review lodged by the appellant on 4 September 2002 in which the appellant nominated Jack Meng as his authorised recipient, the relevant organisation as Jack Meng Immigration Pty Ltd and the authorised recipient's address as 528/368 Sussex Street Sydney NSW.  Also in evidence were the contents of an affidavit of the District Registrar of the Tribunal which annexed a log of mail sent by the Tribunal.  Having regard to the standard practice of the Tribunal and the log, the District Registrar expressed the opinion that the May 2003 letter had been sent to the appellant at his residential address and to "Jack Meng Immigration" at the Sussex Street address.

16. The second issue was whether, in failing to invite comment from the appellant about the embassy list, the Tribunal had failed to comply with s 424A(1) of the Act. The Minister submitted that the list provided to the Tribunal was not information specifically about the appellant, but just about a class of persons to which the appellant belonged and therefore, that particulars of the information were not required to be given.

17. The Minister also submitted that "the material in respect to [the delegation]" was not sufficiently operative in the mind of the Tribunal to give rise to any obligation to give particulars under s 424A, citing NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 at [17]. At any rate, the Minister submitted, the provision of the particulars would not have made a difference to the appellant's claim.

18. The first issue concerns the way in which the notice of the hearing was sent to the appellant's nominated authorised recipient.  If I was affirmatively satisfied that the notice had not been sent to Jack Meng then it would have been necessary to consider the legal consequences of the Tribunal's failure to do so: see VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570. However, on the evidence as it presently stands, I cannot make a finding that the notice was not sent to Jack Meng at the address nominated by the appellant in his application for review by the Tribunal. The information at the foot of the letter referred to above at [15] is consistent with the letter having been sent to Jack Meng. The record in the log that a letter was sent to Jack Meng Immigration, provides some support for a letter having been sent to him but also suggests that the letter could have been sent to his firm or company. If I was affirmatively satisfied, which I am not, that it had been sent to the firm or company then a difficult question might arise about whether the statutory obligation under the Act had been satisfied. In the result, there is insufficient evidence to make a finding which would, in this respect, potentially establish jurisdictional error.

19. I now consider the second issue.  The information supplied to the Australian Embassy, was, according to the Tribunal's reasons, supplied on or about 7 February 2003.  This is apparent from the passages of the Tribunal's reasons set out at [7] and [8] above.  Neither the list of businessmen nor any document summarising its contents is in the court book.  Indeed the only evidence concerning this information is the summary in the Tribunal's decision.  There is no evidence to suggest that whatever document was before the Tribunal, or particulars of the information in it, was provided to the appellant.  Indeed counsel for the Minister appeared to accept that it had not been provided and his submissions were directed to whether it needed to be provided.

20. In ascertaining whether the Tribunal was required by s 424A to take any steps in relation to the list or any document summarising its contents, it is first necessary to determine what, for present purposes, was the relevant information provided to the Tribunal. It can be inferred from the Tribunal's decision that the Australian Embassy either provided the Tribunal with the list or a document which summarised the list. What is "information" for the purposes of s 424A, was discussed by a Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [18] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [31]. The submission of counsel for the Minister that the list or any summary of the list was comprehended by the exclusion in s 424A(3) proceeds on the basis that the information was not specifically about the appellant but just about a class of persons of which the appellant is a member. As I understood the submission, that was because the list or a summary of the list contained information not only about the appellant but also about the other businessmen who were to travel to Australia.

21. It is true, that from one perspective, the list contained information not only about the appellant but also about other people and it might be said that the other people constituted a class (the businessmen who were going to travel to Australia) of which the appellant was a member.  However, that approach looks at the form in which the information was furnished rather than the substance of the information.  The section is intended to provide in part a statutory procedural analogue to the common law of procedural fairness: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] and consistent with that purpose, the form in which the information was furnished should not dictate its characterisation for the purposes of the section. The substance of the information was that the appellant had been a businessman scheduled to travel to Australia. In my opinion, this, in any relevant sense, was only information specifically about the appellant. It was information establishing or tending to establish that the appellant had been selected to travel to Australia. It was this information that the Tribunal identified in the material provided by the Australian Embassy and relied on in reaching the conclusion that the appellant was not a genuine practitioner of Falun Gong. Accordingly, s 424A was enlivened if it was information the Tribunal considered would be the reason, or part of the reason, for affirming the decision.

1. Counsel for the Minister submitted that the information was not sufficiently operative in the mind of the Tribunal to give rise to any obligation to give particulars.  Ultimately, the question can be posed by asking whether the information was so integral to the reasoning process rejecting an applicant's claim as to require as a matter of fairness that the applicant be told that information: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [53]-[54].

2. In the present case, the Tribunal identified three or four reasons why it had difficulty with the appellant's claims. One was the appellant's claim that the catalyst for his decision to leave China was a tip-off that the meeting he was attending was about to be raided. The Tribunal relied on the information supplied by the Australian Embassy to, in effect, reject that explanation. That was because the appellant was scheduled in any event, to travel to Australia as part of the delegation. It appears to me that this was an important step in ultimately rejecting the appellant's claims and was part of the reason for affirming the decision of the delegate. Accordingly, the Tribunal failed to provide particulars as required by s 424A. If there were no alternate and valid basis of reasoning offered by the Tribunal, this would constitute jurisdictional error and relief should issue: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [77] per McHugh J, [173] per Kirby J and [206] per Hayne J.

3. But that is not the end of the matter.  The Tribunal did provide an alternate basis for its decision, considering the hypothetical situation, if it was wrong and the appellant was a genuine adherent and practitioner of Falun Gong.  It is necessary to consider the Tribunal’s alternative reasoning.  If there is no error attending that reasoning the decision will not have been vitiated by jurisdictional error (see Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [61]-[62]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J; NAIF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 114 at [16]-[17] per Madgwick J).

4. In the alternative, the Tribunal reasoned that:  

   [43] Even if I were wrong in rejecting the claims of the Applicant that he is an adherent of Falun Gong and with respect to his detention by the PSB on 27 March 2002, the fact remains that there was insufficient evidence to detain the Applicant for more than a few hours and the proposed demonstration was never held.  Thus there was no reason why the Chinese authorities either at the time the Applicant left China or in the foreseeable future would have any adverse interest in the Applicant.
   …
   [47] …Even if the Applicant were a genuine Falun Gong practitioner, on the Applicant’s own evidence, he was able to practise Falun Gong without detection from about January 1999 until at least February 2002.  I am satisfied that if the Applicant were to practice Falun Gong upon his return to China he would be able to practice Falun Gong successfully in secret or in the privacy of his own home.

   [48] For all the above reasons, I cannot be satisfied that in the foreseeable future the Applicant faces a real chance of Convention related persecution in China either because of suspected involvement with the Falun Gong movement or for any other reason. … (emphasis added)

5. If the Tribunal was to assess the appellant's claims on the premise that he was a genuine Falun Gong practitioner, it had to ask itself certain questions in the proper exercise of its jurisdiction.  In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 the High Court considered a Tribunal decision concerning homosexual men who lived discreetly in Bangladesh and described the error made by the Tribunal (at [88]-[89] per Gummow and Hayne JJ) as follows:

   …The Tribunal did not ask why the appellants would live "discreetly".  It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution.  That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.  That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier:  first, that it is not possible to "live openly as a homosexual in Bangladesh"; secondly, that "[t]o attempt to [live openly] would mean to face problems"; and, thirdly, that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet".  Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants.  It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded.  All that was said was that they would live discreetly.

   The Tribunal did not deal with the question presented by s 36(2) of the Act – did Australia owe protection obligations to the appellants? It either did not correctly apply the law to the facts it found, or its decision involved an incorrect interpretation of the applicable law. The ground of review specified in s 476(1)(e) of the Act was made out.

   Their Honours, McHugh and Kirby JJ explained also (at [53]), that where a Tribunal has found that a fear of persecution causes someone to be discreet it will be necessary for the Tribunal to consider whether their fear of harm was well-founded and amounted to persecution. 

6. In this matter, the Tribunal did not make a finding about whether the appellant would practise Falun Gong on his return, merely stating that if he did he would be able to do so successfully in secret or in the privacy of his own home, that is to say, discreetly.  It is clear though, that the Tribunal found that the appellant would not face a real chance of persecution for a Convention reason if he was discreet.  This finding does not answer the question of why the appellant might be discreet in the future or why he might have been discreet previously or perhaps whether, in any event, he would be discreet.

7. Having purported to proceed on the basis that it accepted the appellant was and had been a Falun Gong practitioner, the Tribunal had to consider the appellant’s claims in that context and make the appropriate inquiries to determine whether the appellant would have a well-founded fear of persecution for a Convention reason.  It did not and in failing to do so, failed to exercise its jurisdiction. 

8. For the reasons given above concerning the failure of the Tribunal to provide particulars of relevant information to the appellant and to ask itself the proper questions in its alternative reasoning, orders should be made setting aside the orders made by the Federal Magistrate and in lieu thereof there be orders quashing the Tribunal's decision and ordering the Tribunal to reconsider the application according to law.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             11 August 2005

The Appellant appeared in person.
Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 April 2005, 24 May 2005
Date of Judgment:	12 August 2005