NBHH v Minister for Immigration
[2005] FMCA 838
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBHH v MINISTER FOR IMMIGRATION | [2005] FMCA 838 |
| MIGRATION – RRT decision – Chinese Falun Gong practitioner – claims disbelieved by Tribunal – no breach of s.424A – no other jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(3)(a), 424A(3)(b), 424B, Pt 8
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214
NANF v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 134 FCR 141
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
| Applicant: | NBHH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2206 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 6 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2206 of 2004
| NBHH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application made to the Federal Court under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) which has been referred to this Court by order of Wilcox J on 13 July 2004. The application challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 April 2004 and handed down on 19 May 2004. The Tribunal affirmed a decision refusing to grant a protection visa to the applicant.
The jurisdictions of both the Federal Court and this Court in relation to decisions made under the Migration Act 1958 (Cth) (“the Migration Act”) are subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The present applicant arrived in Australia in November 2003 on a 12‑day visitor’s visa. On 8 December 2003 he lodged an application for a protection visa with the assistance of a migration agent, Jack Meng. Attached to the application were two typed statements which were unsigned. In one dated 15 December 2003 the applicant said:
Being a Falun Gong follower, I have been persecuted by Chinese government since 1999. I believe if I return to China I will have to face a more miserable life because of my belief.
He indicated that he had been a “marketing manager of a local newspaper” and had written:
… a lot of reports and news in which I expressed my sympathy for the Falun Gong followers and tell the public how the Falun Gong followers are persecuted. Most of them were published in the beginning.
Also, because I do know the truth of Falun Gong, I started practising it too. I attended Falun Gong activities held in the (location) regularly. I was very active in these activities. So they recommended me to be one of the group leaders. After Chinese authorities started to suppress Falun Gong, I became a major target of their crackdown since not only did I report the truth in the newspapers, but also I practise it myself. The leaders in the relevant authorities talked to me many times, asking me to stop practising Falun Gong. I was very scared. They threatened that if I didn’t stop, they would send me to jail.
It was a terrifying period of time. People around me who practised Falun Gong were all scared. I felt so much psychological pressure. Sometimes, I felt I was on the verge of breakdown. Fortunately I had my passport ready. So with the help of some friends, I came to Australia to stay so that I could escape from that terrible crackdown.
I will keep practising Falun Gong in Australia and I will also help to distribute information to people, so that the truth in China could be disclosed to the whole world.
A second shorter statement dated “December 2003” said:
Being a Falun Gong practitioner, I ever was detained and beaten by police in Mainland China. Nowadays I am still in fear when I recall my experience in China. I am afraid I will again be located and tortured by them if I return to China.
A delegate refused the application on 19 December 2003, and the applicant appealed for a review by the Tribunal assisted by his agent, Jack Meng. In the application form in response to the question, “Please tell us why you consider yourself to be a refugee” there is written: “Please refer to my statement at DIMIA”.
The Tribunal on 5 March 2004 wrote to the applicant and his agent informing them that the Tribunal was unable to make a decision in the applicant’s favour on the material before it, and invited him to attend a hearing on 21 April 2004. The applicant attended the hearing and had the assistance of an interpreter.
In its reasons for decision the Tribunal sets out the applicant’s claims and refers to further information given by him at the hearing.
A transcript is not in evidence before me, and I accept the Tribunal’s description of the hearing. The applicant told the Tribunal that he had worked as a journalist for a daily newspaper from July 1998 to August or September 1999, and then as a marketing manager for a staple food supplier from 1997 until 2003. He claimed that he had been beaten and detained after practising Falun Gong for a short period in October 1999. He said that he had become a Falun Gong practitioner in that year. The Tribunal said:
The Applicant said he had become a Falun Gong practitioner in 1999 and learned the basics from a master. He increased his understanding of Falun Gong practice but believed it is mainly embodied in a person’s mind or spirituality and that it is beneficial in treating some diseases. Once, when reporting a Falun Gong rally, other members had suggested that he should be a Falun Gong group leader but he had never taken on this role, only assisting by taking a few people to practice. Before the crackdown on Falun Gong he had practised each day in public, usually for one to two hours. His master taught him the Falun Gong exercises and told him to practise them and ask other teachers if there were things he did not understand. Following the crackdown he practised Falun Gong a few times in private but his wife became worried and made him stop, fearing trouble from the authorities. He had not begun to practise in Australia because, although Australia is a free country, he is still nervous and does not know what is going on. Apart from being handed material in the street, he had not had contact with Falun Gong practitioners in Australia but wished to practise here where he knew he would be free to do so.
The Tribunal then described the further course of the hearing, in which it asked the applicant a number of questions to test the applicant’s knowledge of Falun Gong theory and practice. It also referred to country information concerning the situation of Falun Gong practitioners in China.
Under the heading “Findings and Reasons”, the Tribunal referred to the applicant’s claims that he would be persecuted and killed by the Chinese authorities because he is a Falun Gong practitioner who will continue to practise his faith if he returns to China. It also referred to his claims to have been involved with Falun Gong. It concluded:
The Tribunal is not satisfied, on the evidence provided by the Applicant, that he has ever been a Falun Gong practitioner or that he has ever had any significant involvement with the Falun Gong faith. The Applicant’s knowledge of Falun Gong beliefs and practice, as demonstrated in his responses to the Tribunal’s questions, is minimal.
The Tribunal explained various features of the applicant’s evidence that supported that finding and concluded:
Having not been satisfied that the Applicant is or has ever been a Falun Gong practitioner, the Tribunal finds that he has embellished his claims in order to strengthen his case for a protection visa. The Tribunal finds that this raises significant doubts about the Applicant’s credibility.
Harm suffered by the Applicant
As the Tribunal is not satisfied that the Applicant has ever been a Falun Gong practitioner or that he has ever had any significant involvement with the Falun Gong faith, it follows that it is not satisfied that he has ever suffered any harm in China for this reason. Nor is it satisfied that the Applicant was forced, because of any involvement with Falun Gong, to rely on bribery and the influence of his brother‑in‑law with the PSB in order to obtain a legal passport in his own name as he claims.
The Tribunal, however, considered further aspects of the applicant’s claims. It said:
The Tribunal has, however, also considered whether the Applicant may have suffered harm because of his activities as a journalist reporting on the Chinese government’s policies towards Falun Gong.
The Tribunal referred to the applicant’s claims to have been questioned in September 1999 and to have lost his job at that time. It said:
Together with its doubts about the overall credibility of the Applicant’s evidence, the Tribunal doubts the credibility of his claims in this area.
The Tribunal referred to discrepancies between the applicant’s primary application and his oral evidence at the hearing and noted that the applicant attributed them to mistakes made by his adviser. It said:
The Tribunal is not satisfied that the Applicant has provided a convincing explanation for these discrepancies. The Tribunal is not satisfied that the Applicant has provided an accurate account of his employment history or that he was, in fact, employed as a journalist in the period July 1998 to September 1999 as he claims. As it is not satisfied on this point, it follows that the Tribunal is not satisfied that the Applicant ever wrote newspaper reports favourable to Falun Gong or that he ever suffered harm for this reason.
The Tribunal expressed this conclusion under the heading “Summary”:
The Tribunal is not satisfied that the Applicant is or has ever been a Falun Gong practitioner or has had any significant involvement with the Falun Gong faith. Nor is the Tribunal satisfied that the Applicant was ever a journalist who wrote articles favourable to Falun Gong. Nor is the Tribunal satisfied that the Applicant has ever suffered any harm because of his involvement with Falun Gong or support for it. The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution because of involvement with Falun Gong, or for any other Convention‑related reason, either now or in the reasonably foreseeable future, should he return to China and is not satisfied that he is a refugee.
The applicant filed an application in the Federal Court which, as I have indicated, has been transferred to this Court. The application makes three complaints concerning the Tribunal’s decision. The first is:
1. … the Tribunal ignored part of my claims as follows:
1)The applicant wrote articles for his newspaper about Falun Gong, which had become popular in China.
2)After the ban imposed on Falun Gong in 1999, the applicant kept reporting the truth.
3)In about September 1999, the applicant was taken in by the Public Security Bureau and told to stop the reporting since Falun Gong was deliberately undermining the Communist party and had been banned.
I consider there is no substance to this complaint since the Tribunal has plainly been aware of those parts of the applicant’s claims, and has made findings addressing them. The applicant’s complaint is, in effect, that the Tribunal did not accept his claims. But that complaint does not give rise to jurisdictional error.
The second complaint is:
2.The failure to recognize and deal with these claims give rise to the Tribunal’s failure to provide the applicant with a procedural fairness and natural justice.
In my view, that complaint fails for the same reason as the first complaint: that it is incorrectly premised. There was no failure of a duty to accord procedural fairness arising from the circumstance that the Tribunal assessed adversely the applicant’s refugee claims.
The third complaint is:
3.The failure has affected the Tribunal’s proper exercise of its powers.
This complaint fails for the same reason.
The applicant on 8 November 2004 filed an amended application setting out the following complaints.
II.Claim
RRT stated in page 9 of its “Decision and Reasons for Decision” that my knowledge of Falun Gong is minimal and that I have not had any contact with Falun Gong members in Sydney.
It is not fair because I was very anxious during the hearing and might not be able to give the exact answer, as expected by the Tribunal member. I didn’t join the Falun Gong meeting in Sydney because I still fear that one day if I need to go back to China, I would be punished even more severely.
RRT has conclusion that I am not a genuine Falun Gong practitioner is incorrect.
The applicant has not sought to substantiate his complaints about the hearing by way of evidence from himself or the transcript of the hearing. In the absence of evidence I am not able to find any substance in them. Indeed, it is unclear whether he is complaining about what happened at the hearing, or merely explaining why he felt his answers should not have been given the weight they were by the Tribunal. If his complaint is the latter, in my opinion it does not give rise to any jurisdictional error.
On all the material before me I am not satisfied that the Tribunal’s testing of the applicant’s knowledge of Falun Gong was attended by any unfairness. I consider it was open to the Tribunal to apply its conclusions on that matter in the manner set out above.
The applicant in his oral submissions today has not been able to advance his case for identifying jurisdictional error.
In none of his documents nor what he has said has he complained about procedures followed by the Tribunal. However, I have considered the Tribunal’s procedures in relation to s.424A of the Migration Act, which requires in some circumstances a Tribunal to give a written invitation to an applicant to comment on adverse material. The recent judgment of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 requires reconsideration of the previous understanding of the effect of a breach of this provision. Federal Court authority had previously suggested that, notwithstanding a failure to give a written invitation to comment, relief should not be granted where adverse material was sufficiently put to an applicant in the course of an oral hearing (see, for example, VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [66‑9] and NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214 at [25‑7] and NANF v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 134 FCR 141 at [54‑6]). I explored this issue with Counsel for the Minister.
In the present case, I am satisfied that the Tribunal was not obliged to raise any matter with the applicant by way of a written notice under ss.424A and 424B. In my opinion, the Tribunal’s reasons for affirming the delegate’s decision were essentially that it was not satisfied that the applicant had ever been a Falun Gong practitioner or had any significant involvement with that faith. Inherent in that conclusion was a rejection of the applicant’s claims as to his being persecuted for his adherence to that faith.
To the extent that the Tribunal has relied on general country information concerning Falun Gong, the obligation to serve a written invitation to comment is excluded by s.424A(3)(a).
In relation to information given by the applicant which the Tribunal has assessed, I consider that all that information was information “that the applicant gave for the purpose of the application” within s.424A(3)(b) by reason of his further tendering in his earlier visa statement when making his application for review. This is not a case, therefore, where the Tribunal’s reasons have been in part based on a finding as to credibility drawing adversely upon information given by an applicant prior to his application for review and not “for the purpose of the application” (see VAF (supra) at [20]). I am also doubtful whether the discrepancies in the statements made by the applicant should be regarded as a relevant “part of the reason” for its decision, on the test in VAF (supra) at [29]-[33] (see also VAUX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [54]).
For the above reasons, I have been unable to identify any jurisdictional error affecting the decision of the Tribunal, and I must therefore dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 23 June 2005
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