NAVB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 331

FEDERAL COURT OF AUSTRALIA

NAVB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 331

NAVB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N988 of 2003

JACOBSON J
16 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	No N988 of 2003

BETWEEN:	NAVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE OF ORDER:	16 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs in the proceedings.

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	No N 988 of 2003

BETWEEN:	NAVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	16 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 1 July 2003 and handed down on 31 July 2003.  The RRT affirmed a decision of a delegate of the Minister given on 13 June 2002 refusing to grant the applicant a protection visa.

2. The applicant is a citizen of the Peoples Republic of China (“the PRC”).  She arrived in Australia on 20 February 2002 and lodged an application for a protection visa on 7 May 2002.  She claimed to have a well-founded fear of persecution on the ground that she was a practising member of the Falun Gong, which she described as a religion.  Her claim to fear persecution was therefore based on the ground of religion, under the Convention. 

3. The applicant's claim for a protection visa was lodged with a typed document, dated 7 May 2002, which enclosed, amongst other things, a written statement of the applicant.  The RRT set out the applicant's claims in its reasons for decision and the RRT's account of the claim was drawn very substantially from the applicant's statement.

4. The applicant stated that she lived in Zhengzhou, Henan Province.  She was married in 1986 and had a son in 1990.  She started to practise Falun Gong in early 1993 to at least, in part, overcome the effects of ill health after the birth of her son.

5. After the crackdown by the PRC government on Falun Gong, the applicant says that everything changed and that she became a target of the local police.  She claimed that she refused their requests to give up Falun Gong.  She also claimed that the police came to her home and detained her in a detention centre.  This was said to be because the police asserted that the applicant was a leader of the Falun Gong group in her work unit.  She also claimed that these charges gave rise to the police torturing her and that she lived in constant fear.

6. The applicant claimed that the police eventually released her because of insufficient evidence, but that she could not practise Falun Gong publicly again.  She said that she therefore felt great psychological pressure and that she dare not go back to China.  She claimed that if she were to go back to China she would suffer the same maltreatment.

7. The RRT recorded in some detail what had taken place before the delegate reached a decision on the application.  The delegate sent a letter, dated 17 May 2002, to the applicant and her authorised recipient, requesting that the applicant attend an interview to respond to certain adverse information.  The effect of the adverse information was that PRC nationals, who departed that country legally, were thoroughly vetted by security officials and were therefore not likely to come to adverse attention and that ordinary practitioners of Falun Gong would not face difficulties in the PRC.

8. The RRT recorded that a registered letter was sent by the delegate to the applicant at her residential address but was returned with a note that the applicant had refused to accept it.  The RRT noted that the registered letter sent to the authorised recipient was not returned and the applicant did not respond to the request nor did she attend the scheduled interview.

9. The RRT also recorded that after the application for review was lodged the RRT sent an invitation to the applicant, under s 425, to attend a hearing on 21 May 2003.  That letter was sent by registered post on 8 April 2003 to the applicant at her postal and residential addresses and to the authorised recipient, whose address was noted on the application for review.  One of the invitations was returned to the RRT but the others were not. 

10. The RRT noted that a response was received stating that the applicant would attend the hearing and that she required an interpreter.  However, the applicant did not attend the hearing.  In addition, an invitation was sent to the applicant, pursuant to s 424A, in a letter dated 19 May 2003.  It was sent to the applicant and to her authorised recipient in the manner contemplated by the Act.  The information contained in the letter was that the Department had received an anonymous allegation that the applicant's claim was false.  The letter stated that the information may go to the issue of the applicant's credibility. 

11. Neither the applicant nor her representative contacted the RRT in response to the

    
    

    s 424A letter but a further letter was sent containing the same information on 23 May 2003.  The letter was also sent in the manner contemplated by the Act but no response was received by the RRT.

12. The RRT referred in its reasons for decision to independent country information.  There was information to the effect that the PRC authorities had the ability to restrict the departure from the country of suspected Falun Gong leaders. 

13. There was also country information, to which the RRT referred, that it was only the "core members" or "die-hards" who played a leading role in the Falun Gong that were at risk of attention from the authorities. 

14. In stating its findings and reasons the RRT observed that the applicant does not have an onus of proof but that relevant facts in support of the application must be supplied by an applicant to the RRT.  The RRT also referred to case law, which establishes the proposition that the RRT is not bound to accept the allegations or claims made by an applicant.  The RRT must reach a state of satisfaction that a person is a refugee.  The RRT stated that the applicant's details in support of her claim were vague and insufficiently particularised.  As a result of this, and in light of the fact that the applicant did not attend an oral hearing before the RRT, it came to the view that it could not be satisfied that the applicant was a member of the Falun Gong. 

15. The RRT also referred to the independent country information mentioned above which suggested that a person who obtained a passport to leave China would not be of interest to the Chinese authorities.  Accordingly, the RRT found that the applicant was not of adverse interest to the authorities.  The RRT said that as a result of this it could not be satisfied about the applicant's claims of detention, torture, interrogation and adverse treatment.

16. The RRT concluded that if the applicant was a member of Falun Gong she was an ordinary member and not a leader of the organisation.  The RRT also said that it was unable to be satisfied on the evidence before it that the claims gave rise to past persecution on a Convention ground.  The RRT said that there was nothing in the material before it which would enable it to find that the applicant faced a real chance of persecution in the future, on a convention ground.

17. The RRT referred to the applicant's failure to respond to the s 424A letter.  It inferred from this that the information in the letter was correct.  It said that as a result of this the applicant's credibility was in issue.  The RRT said that this indicated that the applicant's claims had no substance.  It then said:

    “As a result, the Tribunal confirms its previous findings as cited above.”

18. The applicant appeared before me this morning, in person.  She did not file any written submissions.  The effect of the short submissions she made was that she challenged the merits of the decision reached by the RRT.

19. It is well established that the RRT is not bound to accept an applicant's account of his or her claims; see Abebe v The Commonwealth (1999) 197 CLR 510 at [84] - [85]. It is for an applicant to put before the Tribunal whatever evidence or argument he or she wishes to advance in support of the contention that he or she has a well-founded fear of persecution on a Convention ground. It is then for the tribunal to decide whether the claim is made out; see Abebe at [187].

20. It seems to me that the approach taken by the RRT was in accordance with the principles to which I have referred.  The RRT was not satisfied on the material supplied to it.  It found the material was vague and lacking in detail.  It also found that the claims were not supported by, and indeed contrary to, the effect of country information. 

21. In light of this the RRT failed to reach the state of satisfaction required by section 65 of the Act in deciding to affirm the decision of the delegate to refuse the grant of the protection visa.  In view of the applicant's failure to attend the hearing and her failure to respond to the invitation sent to her under s 424A of the Act the RRT was entitled to make a decision on the review without hearing from the applicant in person; see ss 424C(2), 425 and 426A(1).  The RRT was entitled to come to the view that the material supplied to the delegate and to the Tribunal did not make out the claim which the applicant asserted.

22. I express no view as to whether the RRT was entitled to draw an inference that the information in the s 424A letter was correct, nor do I express a view as to whether the RRT was entitled to make a finding about credibility, in light of the failure to respond to the letter.  It seems to me that it is plain from the RRT's reasons that the question of whether the information was correct was an alternative ground of decision.  It is clear that independently of the inferences drawn from the failure to respond to the letter that the RRT came to the view that the material supplied by the applicant was insufficient to satisfy the RRT that the applicant was a refugee, in accordance with the Convention.

23. It is well established that the court cannot review findings of fact made by the RRT.

24. For these reasons the orders which I will make are that the application be dismissed and I order the applicant to pay the respondent's costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             25 March 2004

Applicant appeared in person
Counsel for the Respondent:	A J McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 March 2004
Date of Judgment:	16 March 2004