Sun v Minister for Immigration and Multicultural Affairs

[2001] FCA 1760

FEDERAL COURT OF AUSTRALIA

Sun v Minister for Immigration and Multicultural Affairs [2001] FCA 1760

IMMIGRATION – application for a protection visa – whether no evidence upon which decision made – whether decision induced by actual bias – no case made out.

Migration Act 1958 (Cth)
Federal Court Rules O 35 r 7(2)(a)

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 referred to
Minister for Immigration and Multicultural Affairs v Indatissa (2001) 64 ALD 1 referred to

BAO RUNG SUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1221 OF 2001

CONTI J
5 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1221 OF 2001

BETWEEN:	BAO RUNG SUN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant to pay the Respondent’s costs of the Application.

3.The Applicant to have liberty to apply pursuant to Order 35 Rule 7(2)(a) of the Federal Court Rules.

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	N 1221 OF 2001

BETWEEN:	BAO RUNG SUN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	5 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 July 2001, whereby the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa, because as in the case of the delegate, the Tribunal was not satisfied that the applicant was a refugee within the Convention definition. The applicant has not appeared in person or by a representative.

2. On 5 November, 2001 my associate wrote to the applicant at the address disclosed on her application for review, namely Suite 1104, Tower 2, 600 Railway Parade, Hurstville, 2220, New South Wales. The letter was addressed to the applicant in person and was headed by reference to the title to the proceedings. The text of the letter was as follows:

   “When your matter was last before the Federal Court, a Registrar set down your matter for hearing on 6 February, 2002 before Justice Conti.  I am writing to inform you that Justice Conti would like you to come to court for a directions hearing on Friday, 16 November, 2001 at 9.30 am.  Although this is not the final hearing it is very important that you appear before the court on this day.

   When you receive this letter please contact me on 9230-8421.  This will enable me to know whether you are happy with this date or whether you would prefer another date to be allocated.”

3. On 7 November, 2001 there was prepared a document purportedly bearing the signature of the applicant called, "A Submission".  The document displayed the applicant’s abovementioned address and referred to file number N1221 of 2001.  The submission extends into two pages, in the course of which she purports to provide a basis for the grounds set out in the application for review, such grounds being actual bias of the Tribunal and absence of evidence to support the Tribunal’s decision.  It suffices to say that this so-called submission, which I have placed on the court file, provides no justiciable basis in support of either supposed ground for review.  I will say more on that score later in these reasons for judgment.

4. On 16 November 2001, the respondent attended court but the applicant did not do so, either by herself or by any representative.  Moreover the efforts of the respondent to notify the applicant of the hearing date of the application, and to provide a copy of the green book to her, have been unsuccessful. The address of the applicant shown on the application for review is apparently that of a migration agent, and a person at that address informed the person who attempted service of the green book that he or she no longer represented the applicant, and that the applicant’s present whereabouts was not known.

5. I have taken the view from the material before me, and what has been disclosed to me by the Minister’s legal representatives, that the applicant has no bona fide intention to proceed with her application. The failure of the applicant to notify any change of address from that appearing on the application for review supports that conclusion.  Having read the Tribunal's reasons for decision, I am unable to understand how the grounds for review could be fairly said to evince any viability whatsoever.  I therefore propose to dismiss the application, and to provide reasons for so doing, by reference to the Tribunal’s reasons for decision.

6. The applicant is a citizen of the Peoples’ Republic of China who was born on 7 June 1955. She arrived in Australia on 16 October 2000, and on 14 November 2000 she lodged an application for a protection (Class XA) visa pursuant to the Migration Act 1958 (Cth) (“the Act”) with the Department of Immigration and Multicultural Affairs. When the matter was before the Tribunal, the applicant claimed to have a well-founded fear of persecution on the basis of her religious beliefs, namely that she was a practitioner of Falun Gong in China. She claimed that she began to practice Falun Gong four years ago in China. Her alleged commitment to the practice of Falun Gong involved participation in meetings, conferences, distributing materials and so forth. She also claimed that she became a leader of one of the centres in China some two years later. Although the Chinese Government has not taken action against Falun Gong practitioners in her area, which has been described by the Tribunal as a somewhat remote place, she claimed that she was dismissed from her place of employment because of her commitment to Falun Gong.

7. It is appropriate that I briefly record the nature of this species of religious belief. Falun Gong is one of China’s 84,000 schools of self-cultivation and is a mixture of traditional Chinese Qigong meditation and faith healing techniques. It possesses elements of Buddhism, Taoism and Confucianism. The objective of Falun Gong is to promote the improvement of mortal character through increased self-awareness. It is also based on the concept of Zhen-Shan-Ren (truth-compassion-forbearance). Followers of Falun Gong are said to believe that the founder telekinetically implants a falun, a “wheel of law” or miniature of the universe, into their abdomens, where it spins constantly, absorbing and releasing energy, expelling bad forces, keeping the person aligned and making him or her spiritually and physically healthy.

8. Despite the applicant’s claim that she feared persecution, due to her participation in the Falun Gong movement, the Tribunal pointed out that it was not until her second visit to Australia that she sought a protection visa. On the first occasion that she visited Australia she remained her for only ten days, whereupon she returned to China, and then returned again to Australia about two weeks later. The applicant claimed before the Tribunal that the first time she arrived in Australia, she had difficulties with isolation and language barriers. Nevertheless she maintained that she had fled China because of her fears. When she returned to China, her friends advised her to leave because of her participation in the Falun Gong movement, and the fact that many of her fellow practitioners had been detained.

   The Tribunal’s findings

9. The findings of the Tribunal may be summarised as follows:

   (i)the Tribunal did not accept that the applicant could have been so afraid of the Chinese authorities as to leave her family in China and travel to Australia, yet to return again to China less than two weeks after arriving in Australia for her first visit;

   (ii)there was no realistic chance that she would have any problems if she were to return to China, in circumstances where she had never experienced previously any problems with persecution by reason of her practice of Falun Gong;

   (iii)the Chinese authorities were obviously not interested in the applicant on the basis that she had already left the country twice, and if she had been of interest to the authorities, she would have been prevented from leaving the country;

   (iv)the applicant claimed at the hearing that she presently practices Falun Gong at home, only because she is not familiar with the area where she lives, and cannot gain admission into a group practice; furthermore, although her landlord is aware of locations where people practice Falun Gong in Australia, the applicant nevertheless maintained that she cannot find such places; the Tribunal consequently found that if the applicant was sufficiently committed to Falun Gong to leave behind her family, including her two children in China, she would have found out details of the whereabouts of group practices from her landlord, and thereupon sought participation. Accordingly the applicant did not have a sufficiently high profile, nor a sufficient commitment to Falun Gong, as to attract the attention of Chinese authorities, should she return to China;

   (v)the applicant’s claim that she has been visited by police after her departure was implausible since such a claim was not made in her written applications to the Department, but was instead merely added to her supplementary submissions before the Tribunal;

   (vi)the applicant is not a regular practitioner of Falun Gong, nor is it likely that she is a leader of a group who would be persecuted by the Chinese authorities.

   The application for review

10. In her application filed in this Court, the applicant claims that the Tribunal has committed two errors in its decision, first, that the decision was induced or affected by actual bias, and secondly, that there was no evidence or other material to justify the making of the decision. Such grounds of review disclose no reasons why those two errors were supposedly made by the Tribunal.

11. As to the first purported ground of the application, the applicant would have to demonstrate that the Tribunal member possessed a pre-existing state of mind which prevented him from undertaking, or rendered him unwilling to undertake, any or any proper evaluation of the materials placed before him which would be relevant to the decision required of him to be made: see Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 per French J. There is nothing on the material before me to demonstrate that the Tribunal member so acted in undertaking his consideration and evaluation of the applicant’s application for review.

12. In relation to what may be described as a “no evidence” ground, it has been established in a Full Court decision of Minister for Immigration and Multicultural Affairs v Indatissa (2001) 64 ALD 1 at 5-6 [26] that in order to make out such ground of review, the applicant must demonstrate the following:

    (i)There was no evidence or other material to justify the making of the decision;

    (ii)The decision under review was based on the existence of a particular fact; and

    (iii)That fact did not exist.

13. It is quite clear, from my examination of the decision of the Tribunal, that there was an abundance of evidence upon which the Tribunal could find that the applicant does not possess a well-founded fear of persecution. It was not open to the Tribunal to find that the applicant had a well-founded fear of persecution, in light of the fact that she had not encountered problems in the past with Chinese authorities for her supposedly practicing Falun Gong. Furthermore, the Tribunal was entitled to place particular weight on the fact that the applicant has been able to leave China on two occasions to come to Australia without experiencing any difficulty of intervention on the part of Chinese authorities to prevent her from so doing. Finally, the Tribunal was entitled to find that she had a lack of commitment to Falun Gong in Australia, and in any event, that she does not have a sufficiently high profile, nor a sufficient commitment to Falun Gong, to attract the attention of the Chinese authorities were she to return to China.

14. Accordingly the applicant’s case for review to this Court must fail. I order that the application be dismissed and the applicant pay the costs of the respondent. I grant liberty to the applicant to apply pursuant to Order 35 Rule 7(2)(a) for which course I am informed by counsel for the respondent that there is some judicial precedent in relation to circumstances such as here present, in case the applicant can establish genuine reasons for her apparent disappearance without providing any means for ascertainment of her present whereabouts.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             10 December 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Miss RM Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2001
Date of Judgment:	5 December 2001