SZAQY v Minister for Immigration
[2005] FMCA 771
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQY v MINISTER FOR IMMIGRATION | [2005] FMCA 771 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.10.01(2)(b)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112
Walton v Gardiner (1993) 177 CLR 378
Chu v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 78 FCR 314
D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
| Applicant: | SZAQY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 386 of 2005 |
| Delivered on: | 9 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr I Archibald |
| Solicitors for the Applicant: | Michaela Byers Solicitors |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 386 of 2005
| SZAQY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 April 2003 and handed down on 6 May 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 March 2002 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZAQY”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 11 January 2002. On 5 February 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 21 March 2002 the delegate refused to grant a protection visa and on 17 April 2002 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant stated she was born in 1967 in Liaoning, China. After high school the applicant claimed she studied at the Shen Yan Medical College from 1986 to 1989 and has a diploma. She claimed from September 1989 to December 2001 she was a manager at a car painting material company in the Guangzhou Baiyun district (Court Book pp.15-16) (“CB”). The applicant claimed she was separated from her husband. She stated in her visa application that she had never been convicted of a crime, was not the subject of any criminal investigation and had no criminal charges pending against her (CB p.22). The applicant claimed she travelled on a Chinese passport issued in October 2000 which is valid for five years. She entered Australia on a one month Temporary (Business) visa which was valid to 11 February 2001.
The applicant claimed she began practising Falun Gong in 1997 with a friend and in early 1999 she and the friend became leaders of their district branch. When Falun Gong was banned by the Chinese government in July 1999 the applicant said they wrote to the government saying they felt the ban was wrong. In mid 2000 the applicant claimed she and her friend were arrested and because they refused to sign a statement promising they would give up Falun Gong they were detained for two months. She said her family then paid a large amount of money and she was released. The applicant was told by the authorities that she would continue to be investigated. She claimed that her family and friends were worried and helped her to obtain a passport and visa to travel to Australia (CB p.23).
Previous proceedings
At the commencement of the hearing, Counsel for the applicant made an application that the previous proceedings brought by this applicant that were subsequently dismissed by the order of Registrar Kavallaris on 24 July 2003 be set aside. I have dealt with the application so it can be resolved prior to addressing the substantive matter listed for hearing before this Court for final hearing.
A brief history of those proceedings is as follows:
a)On 26 May 2003 the applicant filed an application for review under the Judiciary Act 1903 (Cth) for a review of the Tribunal’s decision made on 16 April 2003 and handed down on 6 May 2003. That application was given a Federal Magistrates Court of Australia number of SYG922 of 2003 and the applicant was assigned the pseudonym of “SZAQY”.
b)On 10 July 2003 at a directions hearing before Registrar Kavallaris the applicant did not appear. The Registrar made an order that the matter be adjourned to Thursday, 24 July 2003 at 2.15 p.m. and that the respondent was to notify the applicant of the directions made, the adjourned hearing date and any orders that the respondent wished the Court to make at the adjourned hearing date.
c)After the hearing and on the same date, the Solicitor for the respondent caused a letter advising of the Court orders to be forwarded to the applicant at the address for service.
d)At a directions hearing before Registrar Kavallaris on 24 July 2003 the application was dismissed pursuant to Rule 10.01(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). A further order was made that the respondent was to notify the applicant within seven days of the provision of Rule 16.05 of the Rules in relation to the setting aside of orders.
e)There was no further correspondence contained in the Court file after 24 July 2003.
Mr Archibald, Counsel for the applicant, applied for the orders of Registrar Kavallaris made on 24 July 2003 to be set aside. This application was not supported by any form of Court document and neither the respondent Solicitor, the respondent Counsel or the Court had been advised prior to the hearing that this application would be made. However, the Solicitors for the applicant had filed an affidavit on 1 April 2005 in the current proceedings listed for hearing (SYG386 of 2005). The affidavit contained the following details:
1.I am the applicant in these proceedings.
2.I arrived in Australia on 11 January 2002.
3.On 6 May 2003 the Refugee Review Tribunal handed down its decision which affirmed the decision of the Minister’s delegate not to grant me a protection visa.
4.Shortly after receiving the Refugee Review Tribunal decision I went to see David Deng of Asiapacific Immigration and Education Centre, Suite 609, 368 Sussex Street, a migration agent. I gave him my documents. David Deng said ‘I will lodge an application with the Court for you’.
5.I received a copy of an application filed by David Deng.
I telephoned David Deng on several occasions between May 2003 and February 2005. On each occasion I asked for information about the status of my court case. On one occasion David Deng said: ‘You just have to wait until the Court writes back’.
On another occasion David Deng said: ‘We have not heard from the Court yet’. I said in each telephone conversation with David Deng: ‘When will I have to go to Court?’
David Deng said: ‘The queue could be eight months long’. He said: ‘You just have to stay at home and wait’.
On another occasion I asked David Deng: ‘What about my case?’ He said: ‘No problem. Your case will win. Lots of my customers who apply for refugee status win’.
I never received any further advice from David Deng about the progress of my court case.
6.On 20 January 2005 I was detained and taken to Villawood Detention Centre. I was released from Villawood on 11 March 2005. Peter Coroneos, solicitor made enquiries on my behalf and said to me: ‘You do not have an application before the Court’.
I then telephoned David Deng and asked him to return my documents. I told him that I had been told that there was no application with the Court. He said: ‘I’ll look into it for you’.
7.On 11 February 2005 I filed an application commencing these proceedings in the Federal Magistrates Court.”
Counsel for the respondent objected to the application on the ground that the matter (SYG922 of 2003) was not listed for hearing and neither the respondent nor the Court had been advised that there would be an application of this nature.
An examination of the Court files indicated that the solicitors representing the applicant had filed a Notice of Appearance on 18 March 2005 and had had carriage of the matter since that date. The applicant also wrote to the Court an undated letter which was faxed from the Villawood Detention Centre on 10 February 2005 which indicated she had been represented by Mr David Gong Deng who she had retained as her migration agent and had entrusted that agent to carry out the necessary tasks in prosecuting her visa application and subsequent Court appearances. That letter indicated that Mr Deng had had his migration registration cancelled and that he had been barred from acting as a migration agent for a period of five years. A letter was also received from the applicant’s solicitors dated 12 April 2005 which requested the file relating to the proceedings (SYG922 of 2003) be made available at the hearing of proceedings (SYG368 of 2005). These three pieces of correspondence indicated the matter was an issue well in advance of the commencement of the hearing scheduled before the Court and no action had been taken by the applicant’s solicitor or Counsel to indicate their intention to seek to have the orders of Registrar Kavallaris made on 24 July 2003 set aside. I ruled that the objection was upheld and the application made by the applicant was dismissed.
The Tribunal’s findings and reasons
The applicant appeared at the Tribunal hearing and gave evidence in Mandarin through an accredited interpreter. A friend of the applicant, Mr Eddie Fang, attended the hearing and gave evidence. The applicant also filed a “Release Notice” in Chinese, with English translation, dated 1 June 2000 issued by a prison in her home town which stated the applicant had been imprisoned from 15 April 2000 for disturbing the public order and that she was sentenced for two months imprisonment (CB p.72).
In its “Findings and Reasons” the Tribunal accepted that the applicant was a national of China and was a Falun Gong practitioner. However, on the basis of the applicant’s extremely limited knowledge of Falun Gong philosophy and faulty knowledge of some of the principal exercises, the Tribunal rejected that she was a group leader but accepted that she was an ordinary Falun Gong member of no particular prominence (CB p.91).
In regard to the applicant’s claims, the Tribunal did not accept:
a)having stopped all Falun Gong activities in response to the government ban in July 1999, that the applicant would openly protest the ban to the authorities in a series of letters;
b)that the applicant was detained because of the letters she wrote and because of her position as group leader. The Tribunal noted the applicant claimed she had given up all Falun Gong activities when the movement was declared illegal. The Tribunal was therefore unable to accept that the applicant had ever been detained;
c)the genuineness of the release document which was submitted or the contents of the letters written by the applicant’s sister and friend;
d)that the applicant was beaten and raped in detention or that her family paid bribes to have her released from prison or that she had to report to police on a weekly basis;
e)that the police told her family that the applicant going overseas was deemed a betrayal for which she would be punished;
f)that the applicant received a passport and attendant exit permit in October 2000 and the PSB was involved in the vetting process for the issue of passports and exit permits. Country information indicated that bribes were offered to officials to expedite the issue of passports but it was not possible to bribe members of the PSB to process exit documents for anyone wanted by them;
g)that the applicant was of adverse interest to the authorities when she received her travel documents;
h)that the applicant was dismissed from her work unit after her departure from China because of her Falun Gong activities;
i)that after the applicant’s departure from China the PSB visited her home looking for her;
j)that the applicant’s attendance at a peaceful protest outside the Chinese Consulate in Sydney would bring her adverse attention from Chinese authorities;
k)the psychologist’s report in respect of the applicant’s claims of persecution; and
l)that if the applicant returned to China she would tell people about Falun Gong virtues. If she was not practising Falun Gong in July 1999 because of the government ban, that she would risk arrest by promulgating the movement’s virtues if she returned to China.
The Tribunal found that on the evidence before it that the applicant had never suffered persecution in the past because of her Falun Gong practice and there was no real chance that she would be persecuted in the future if she returned to China.
Application for review of the Tribunal’s decision
On 11 February 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 18 March 2005 an amended application was filed by the applicant’s solicitor who had been retained in preparation of her application. On the day of the hearing the applicant filed a further amended application which contained five grounds. Grounds 1 and 2 were identical to the grounds contained in the amended application and Ground 3 and 4 were no longer pressed. Ground 5 was a completely new ground. The relevant grounds were as follows:
1.The Tribunal did not consider whether the choice of the applicant not to practise Falun Gong after 21 July 1999 was a voluntary choice uninfluenced by the fear of harm if she did practise Falun Gong.
2.The Tribunal failed to consider that upon return to China:
a)whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm,
b)whether, if the applicant wished to display her practise of Falun Gong to other people, she was at risk of suffering serious harm constituting persecution.
c)whether the well-founded fear of persecution held by the applicant by virtue of her practise of Falun Gong, the fear that, unless the applicant acts to avoid harmful conduct, the applicant will suffer harm – that is, that it was the threat of serious harm which constituted the persecutory conduct.
d)whether the perils faced by the applicant was not necessarily confined to her practise of Falun Gong, discreet or otherwise.
3)(Not pressed)
4)(Not pressed)
5)The decision is void for jurisdictional error in that the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the Tribunal may not have brought an impartial mind to bear on the decision.
Particulars
a)in the review hearing the Tribunal asked the applicant: ‘And when did you stop your Falun Gong activities in China?’ There was no basis for the assumption within this question by the Tribunal. Yet the response of the applicant to the question became critical to the ultimate findings of the Tribunal.
b)the Tribunal requested the applicant:
i.to give a short summary of her understanding of Falun Gong philosophy
ii.to tell the Tribunal a ‘little bit more’ about the concept of the universe in relation to Falun Gong
iii.to tell the Tribunal and a ‘little bit’ about the Fal Lun
iv.to advice ‘what is the main book of Falun Gong’, and
v.to demonstrate the five Falun Gong exercises. The applicant demonstrated them. The Tribunal found the applicant’s knowledge of Falun Gong philosophy was extremely limited, and based on a chart which the Tribunal had reference to, the applicant’s knowledge of some of the principal exercises was faulty. On this basis the Tribunal was unable to accept that the applicant was a group leader.
c)In making the finding that the applicant was an ordinary Falun Gong member of no particular prominence, the Tribunal did not take into account whether the fact that the applicant wrote 10 letters of protest after the banning of Falun Gong, may have made her something other than an ordinary Falun Gong member of no particular prominence and of no interest to the authorities.
d)On the basis that:
i.the Tribunal was unable to accept that the applicant was a group leader, and was an ordinary Falun Gong member of no particular prominence, and
ii.the response of the applicant to the question: ‘And when did you stop your Falun Gong activities in China?’ the Tribunal:
1. found it implausible and did not accept that the applicant would write the protest letters,
2. was unable to accept that the applicant was ever detained,
3. found that country information including DFAT: Falun Gong aka Falun Dafa in China CIR No. 397/99, 5 November 1999 CX38557 referring to adverse attention being given to people who participate in protest activity after the ban came into effect, did not apply to the applicant,
4. did not accept the genuineness of the release document from prison,
5. did not accept the contents of the letters written by the applicant’s sister and the applicant’s friend,
6. did not accept the applicant was beaten and raped in detention,
7. did not accept that the applicant’s family paid bribes to have the applicant released,
8. did not accept that the applicant was required to report to the police on a weekly basis,
9. did not accept that the police told the applicant’s family that her going overseas was deemed a betrayal for which she would be punished, as the case relating to her had not yet concluded and she was required to report to police every week,
10. gave the report from the psychologist weight insofar as the applicant’s claims of persecution are concerned,
11. found on the basis that she was an ordinary Falun Gong member, that she should be able to practise on return in the privacy of her home without incurring a real chance of being apprehended by the authorities,
12. did not accept that if the applicant returned to China would she tell people about Falun Gong’s virtues.
Notice of objection to competency
On 24 February 2005 the respondent’s solicitors filed a Notice of Objection to Competency to the jurisdiction of this Court to try this application for jurisdictional review under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) on the grounds that:
1.The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (‘the Tribunal decision’) on 16 April 2003 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.
2.The applicant has not identified any other decision that is sought to be reviewed.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
The hearing
Counsel for the applicant applied for two affidavits of the applicant, the first sworn on 31 March 2005 and the second sworn on 7 April 2005 to be admitted into evidence.
Counsel for the respondent raised no objection to the first affidavit but did object to the second affidavit on the grounds of relevance. The argument was that the applicant’s recollection of the hearing was irrelevant as the transcript was available. The objection was noted.
The applicant’s Counsel sought leave to file in Court a further amended application to which Counsel for the respondent raised the objection that if leave were granted he would have to address the grounds orally in Court without the benefit of notice or preparation and no written submissions in respect of the new grounds had been submitted. The amended application was admitted but the objections were noted.
Counsel for the respondent applied for the affidavit of Catherine Jane Gray sworn on 8 April 2005 and the affidavit of Alice Margaret Hardie sworn on 8 April 2005 (“the affidavit of Ms Hardie”) to be admitted into evidence. A Court Book prepared by the respondent solicitors was filed and served on 1 March 2005 and a Supplementary Court Book was filed on 11 April 2005.
Applicant’s submissions
Mr I Archibald of Counsel, appearing for the applicant, filed written submissions prior to the hearing which contained the following contentions:
a)In relation to Ground 2, the Tribunal failed to consider whether the applicant had a well-founded fear of persecution on her return to China, with that fear being, that unless she acted to avoid the harmful conduct, she would suffer harm. The Tribunal failed to consider that it was the threat of serious harm with its menacing implications that constituted the persecutory conduct: see Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (“S395/2002”). Their Honours, McHugh and Kirby JJ noted at [40]-[43]:
“The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed:
It is one thing to say … that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably – he is not entitled to refugee status.’ (original emphasis)
Simon Brown LJ went on to say:
‘[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.’
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.” (emphasis added)
These comments are applicable to the facts in this case and the Tribunal failed to consider whether the threat of serious harm of itself could constitute persecutory conduct.
b)Similarly in respect to Ground 1, and the applicant’s evidence that she ceased to practise Falun Gong in July 1999, the S395/2002 principle as described above applied. The Tribunal substantially relied upon the applicant’s evidence of her giving up her practise as a basis for the important findings in relation to the applicant not having been detained, the lack of genuineness of the release document, the contents of the letters from the applicant’s sister and friend, the treatment in detention, the payment of bribes for release, the requirement to report to police and the ongoing interest by the police.
c)The applicant filed a further amended application deleting Grounds 3 and 4 in the amended application and substituting a new Ground 5. The basis of the new ground was that a fair minded and informed person might reasonably apprehend the Tribunal may not have brought an impartial mind to bear on the decision. This apprehension derives from the fact that the Tribunal made a series of important findings based on the initial critical findings that the applicant was an ordinary Falun Gong member, of no particular prominence, and that she ceased to participate in activities on 20 July 1999. The initial critical findings were based firstly on a question containing an assumption for which there was no basis. Secondly, they were based on what is submitted was the brief and cursory questioning and analysis by the Tribunal as to the applicant’s knowledge of Falun Gong. Thereafter, the Tribunal relied on the findings to make a series of other findings, not taking into account other evidence before the Tribunal.
d)In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (“NADH of 2001”) Allsop J (with whom Moore and Tamberlin JJ concurred) stated at [12]-[14]:
“The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable: see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 189; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403; Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118–19; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150. “Unreasonableness” in this context may be seen as embodying, at least, what Starke J said in Boucaut Bay Co (In liq) v The Commonwealth (1927) 40 CLR 98, 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28, 57. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360. The perceived absence of findings by the Tribunal so characterised does not, however, exhaust the enquiry as to whether there was apprehended bias, as appears to have been the approach of the primary judge. (I leave to one side at this point whether there was an absence of such findings.) The Full Court in WAEJ was not stating an exhaustive test for apprehended bias of administrative decision-makers.
The obligation to accord of procedural fairness involves the notion that administrative decisions, including a decision of a Tribunal of the kind here, will be made without the reasonable apprehension of bias in the decision maker: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 343–44 at [4]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 91–2.
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70–71; Laws at 90–92; Ebner at 343–45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434–35 at [27]-[32]. It will be necessary to say something more about the content of that test in the context of an administrative decision-maker, such as the Tribunal here. At this point, it is sufficient merely to note that the primary judge did not approach the question of apprehended bias by essaying the somewhat wider task involved in the assessment of the apprehension of the posited fair-minded and informed observer. No doubt this is to be explained by the submissions put to his Honour on WAEJ.”
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The applicant had previous litigation challenging the Tribunal’s decision, as set out in the affidavit of Ms Gray. In summary, on 26 May 2003 the applicant filed an application for review of the Tribunal’s decision in this Court, which was dismissed pursuant to Rule 10.01(2)(b) of the Rules by Registrar Kavallaris. Rather than applying under Rule 16.05 to have this order set aside, the applicant commenced the current proceedings on 11 February 2005. Even if res judicata or issue estoppel did not apply in these circumstances, as there had been no final judgment on the merits, this application was an attempt to relitigate a case already disposed of by the previous proceedings, and should be dismissed as an abuse of process: Walton v Gardiner at 393; Chu v Minister for Immigration & Multicultural & Indigenous Affairs at 323-326. The importance of finality in litigation has been recently stressed: D’Orta-Ekenaike v Victorian Legal Aid at [34-36].
b)In any event, the application must also fail on its merits. The amended application and the applicant’s submissions relied upon passages from S395/2002 but that decision is distinguishable as in this case the Tribunal had not required the applicant to behave in any particular way in future. Rather it noted that the applicant would practise Falun Gong privately as she had claimed (CB pp.87.1, 93.8), and rejected her claims that she would proselytise Falun Gong (CB 94.2). The Tribunal thereby answered the relevant question, i.e. “What the applicant would (not should) do if returned to China?”: as noted in S395/2002 at [82-83] and as was stated in WAJW v Minister for Immigration & Multicultural & Indigenous Affairs (“WAJW”) at [23].
As in WAJW the Tribunal did not in this case make a finding bringing it within S395/2002, so the applicant’s reliance upon that case was misplaced. Rather, the case was factually very similar to NAEB v Minister for Immigration & Multicultural & Indigenous Affairs (“NAEB”) where the Full Court held that no error was demonstrated in the Tribunal noting that the applicant would practice Falun Gong privately in future and implicitly finding that did not constitute persecution: see in particular WAJW at [23]-[27] and NAEB at [59]-[61]. The same reasoning applied in this case.
c)As there was no jurisdictional error in the Tribunal’s decision it follows that it was a “privative clause decision” within s.474 of the Act.
Reasons
The applicant claimed to fear persecution in the People’s Republic of China for reasons of her religion being a follower of Falun Gong. As a consequence of her activities associated with the practice of Falun Gong she claimed she had been arrested on 30 March 2000 and imprisoned for two months during which time she was tortured and raped. The applicant claimed that her mother and sister paid substantial bribes of approximately $A25,000 to have her released from detention on two separate occasions. She claimed that after payment of the second bribe to secure her release she travelled to Australia on a business visa and arrived in Australia on 11 January 2002. The applicant claimed to fear further harm from practising Falun Gong if she returned to the People’s Republic of China. There were three sources for the applicant’s claims. The first was a statement attached to her visa application filed with the Department on
5 February 2002. This was a brief one page typed statement in which the applicant identified herself and explained her introduction to Falun Gong and her arrest in 2000 by the Public Security Bureau because of her involvement and practice of Falun Gong (CB p.23). The second statement was a letter addressed to the Tribunal on 18 November 2002 which was submitted in support of her application for a review before the Tribunal. This was a four page typed statement which recounted the issues raised in her original statement in greater detail. The document also made references to independent country information together with the circumstances in which the applicant had been involved since her arrival in Australia. These statements expressed the applicant’s intention in respect of ongoing involvement with the Falun Gong movement (CB pp.40-43).
The third set of claims was made by the applicant in oral evidence at the Tribunal hearing on 9 April 2003. More detailed information was contained in this material as a result of the Tribunal member asking the applicant specific questions in respect of her previously submitted claims (CB pp.81-87). The Tribunal in its findings accepted that the applicant was a Falun Gong practitioner:
“I accept that she is a Falun Gong practitioner. However, on the basis of her extremely limited knowledge of Falun Gong philosophy and faulty knowledge of some of the principal exercises, I am unable to accept that she was a group leader.
I find that she was an ordinary Falun Gong member of no particular prominence.” (CB p.91)
However, the Tribunal rejected all of the applicant’s claims of past harm. Rather, the Tribunal accepted that the applicant had stopped practising Falun Gong after it was banned by the Government of the People’s Republic of China in 1999. The Tribunal concluded that nothing untoward happened to the applicant thereafter (CB pp.91-94).
The applicant’s amended application and submissions relied upon passages from S395/2002. The applicant relied significantly upon the joint judgment of their Honours McHugh and Kirby JJ at [40]-[43]. This has been extracted and reproduced in the applicant’s submissions at paragraph 24(a) above and particular sections of that extract were emphasised for the purpose of the applicant’s submissions. Counsel for the respondent submitted that the decision of S395/2002 is distinguishable from this case because the Tribunal has not required the applicant to behave in any particular way in the future. In support of this contention Counsel for the respondent submitted that the applicant had conceded to the Tribunal that she would practise Falun Gong privately if she returned to the People’s Republic of China and referred to the following passage contained in the Tribunal’s decision as discussion of the issues that were canvassed during the hearing on
9 April 2003:
“She said that if she returned to China, she would continue her Falun Gong activities. I said that country information indicates that Falun Gong movement considers it acceptable for members to practise in the privacy of their homes (Information provided by the Falun Dafa Association of Australia to the RRT on 11 May 2001 … with regards to the practice and operation of Falun Gong in Australia and China). She responded that she would do that, but in China, even that was not allowed. She stated that she would also tell people that Falun Dafa is good.” (CB pp.86-87)
The Tribunal in its “Findings and Reasons” accepted that the applicant would continue practising Falun Gong at home but rejected her claim that she would proselytise Falun Gong to the public:
“I have also given consideration to what she may do in future if she returns to China. She claimed at the hearing that she would continue practising at home, though, she said, even this is banned. However, although she stopped practising in July 1999, the country information indicates, and I so find, that as an ordinary member she would be able to practise in the privacy of her home without incurring a real chance of being apprehended by the authorities. I note that nothing in the country information available to the Tribunal suggests that Falun Gong practitioners have been penalised for practising in their homes. I also note that private practice at home is endorsed by the Falun Gong organisation (Information provided by the Falun Dafa Association of Australia to the Refugee Review Tribunal on 11 May 2001 as answers to the following questions with regards to the practice and operation of Falun Gong in Australia and China).” (CB pp.93-94)
The relevant question to be asked was: “What the applicant would (not should) do if she returned to China?”: S395/2002 at [82]-[83] as follows:
“Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the Tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs, leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken (as it was in LSLS) merely "to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result". That narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well-founded fear of persecution.”
Counsel for the respondent submitted that the Tribunal both addressed and answered the relevant question in determining whether the applicant in this case falls within the parameters of S395/2002. In support of this approach, Counsel for the respondent referred the Court to the Full Federal Court decision of WAJW per RD Nicholson, Jacobson and Bennett JJ at [23].
“… to come within S395/2002 the appellant would have to demonstrate that the Tribunal’s view of persecution was that persecution does not exist where an asylum seeker can be expected to take reasonable steps to avoid adverse consequences by hiding the fact that he or she is of a particular religious, ethnicity or social group. The Tribunal did not make such a finding. … Such findings cannot, as the appellant urged, be inferred from the absence of a denial by the Tribunal of evidence recited. …”
The respondent’s submission was that the Tribunal did not in this case make a finding bringing it within the parameters of S395/2002. In further support of this contention, the respondent referred the Court to the Full Federal Court decision of NAEB per North, Dowsett and Lander JJ at [59]-[61]:
“The appellant’s case is that the Tribunal failed to ask itself the correct question. Although the ground of appeal is somewhat confusing, the appellant’s point seems to be that pre-occupation with the distinction between public and private practice led the Tribunal into error in determining whether the appellant’s fear was well-founded, keeping in mind that such test requires only that there be a real chance of persecution. The Tribunal certainly identified this test at AB 75. It accepted that the appellant had some interest in Falun Gong and had some history of practising it. It also accepted that if he returned to China, he might continue to practise in private. The key to the Tribunal’s treatment of the matter lies in the following sentences, at AB 86:
It also appears fairly improbable that the authorities would even be aware that the applicant was a Falun Gong follower. However, even if they were aware of this, I am of the view that the most likely, and most serious, consequence for the applicant would be a request that he renounce his belief in Falun Gong.
The Tribunal then found that forced renunciation would not amount to persecution. I have previously referred to this aspect of the matter.
It seems to me that the Tribunal addressed the possibility that the appellant might suffer persecution if he practised in private. It concluded that the consequences to him, if he did so and was exposed, would not amount to persecution. One may doubt the factual correctness of the Tribunal’s analysis of the evidence. In particular, the evidence seems to demonstrate at least the chance of more serious consequences for those who practise in private. Nonetheless it cannot be said that the Tribunal asked itself the wrong question.”
It was submitted that this case is factually similar to that of NAEB and the same reasoning was applied to the Tribunal to its reasoning. It was argued that the Tribunal applied and answered the relevant question as related in S395/2002. It was confirmed in NAEB that the Tribunal asked itself the right question.
The new Ground 5 pleaded in the further amended application filed in Court at the commencement of these proceedings raised the issue of an apprehension of bias. The applicant’s submission, set out in paragraph 24(c) above, claimed that this apprehension arose from the fact that the Tribunal made a series of important findings based on the initial critical finding that the applicant was an ordinary Falun Gong member, of no particular prominence and that she ceased to participate in activities on 20 July 1999. The test to be applied in cases where an apprehension of bias is raised is set out in Refugee Review Tribunal; Ex parte H (“Ex parte H”) at [31]; NADH of 2001at [14]:
“The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].”
The context in which the question, “And when did you stop Falun Gong activities in China?” is set out in the transcript of the Tribunal hearing held on 9 April 2003. The transcript was attached to the affidavit of Ms Hardie as Annexure “A”. The relevant sequence of questions commenced on page 6 of the transcript as follows:
Tribunal:When exactly did you begin practising Falun Gong?
Applicant:1997, that’s when I started practising.
Tribunal:Can you be a little more precise?
Applicant:About April or May.
Tribunal:Where did you practise and how often?
Applicant:In Fu Shun city in ……… Province, that’s my home town. In the park.
Tribunal:In English how would you spell that? Perhaps
Mr Interpreter could help me there.
Interpreter: Fu Shun
Tribunal:And what was the name of the part where you practised?
Applicant:Fu Shun city’s labours park.
Tribunal:And how often?
Applicant:I do practice every day, do the practice every day but learn the Dafa once a week.
Tribunal:And when did you stop your Falun Gong activities in China?
Applicant:In 1999, the 20th of July 1999.
Tribunal:And where do you practise in Australia?
Applicant:I practise in Darling Harbour in city.
Tribunal:When did you start?
Applicant:When I arrived in Australia in February.
Tribunal:February 2002?
Applicant:Yes
The Tribunal member then continued the hearing with a series of questions relating to the frequency of the applicant’s practice of Falun Gong in Australia and when Falun Gong was banned by the Chinese authorities. The question raised in particular (a) of ground 5 of the pleadings was located in a sequence of questions which were establishing the applicant’s involvement in the practice of Falun Gong. The issues raised in particular (b) of ground 5 were all raised with the applicant in the form of a logical sequence of questions directed at the applicant’s understanding of the philosophy and practices of Falun Gong. This included literature, setting out the principles of Falun Gong including questions to the applicant to identify the name of this material. The applicant was then asked to demonstrate the basic exercises that are formed by a practitioner of Falun Gong when undertaking the philosophy’s exercises. The applicant nominated that there were five basic exercises. As this routine was taking place, the Tribunal member asked the applicant to nominate the exercise she was performing so that she could compare it with a chart that he had in his possession which gave a brief outline of the different exercises. There seemed to be some problems during this part of the hearing in that the translator was having some difficulty in translating the name of the exercise as nominated by the applicant at the commencement of each stage of the exercise routine. Despite these minor problems the applicant demonstrated the five exercises that she had nominated, although the distinction between each exercise, when it commenced and when it was finalised was not absolutely clear. The applicant explained to the Tribunal member that due to force of habit she tended to move from one exercise to the other without making distinct to the observer that one routine was being completed and the following routine was commencing.
Third particular identified under ground 5 related to the ten letters of protest written by the applicant and forwarded to the central government in Beijing. The sequence of questions was contained in Annexure “B” of the affidavit of Ms Hardie and was the transcript of Side B of Tape 1 of the Tribunal hearing held on 9 April 2003. The relevant sequence of questions was stated at pages 13-14 as follows:
Tribunal:All right. Let’s leave that and move on and I’ll think about what you said. You state that after July 1999 you wrote to the government protesting the banning of Falun Gong. Can you tell me to whom exactly did you write?
Applicant:To the (not audible) of the central government. (not audible) complaining office (not audible) for complaints.
Tribunal:Complaints?
Applicant:Yes.
Tribunal:How many letters did you write?
Applicant:Ten letters.
Tribunal:Did you receive any replies?
Applicant:No.
Tribunal:And do you have copies of any of these letters?
Applicant:No. They were burned. Burnt up
Tribunal:Burnt? You burned them?
Applicant:They were all taken away by the P.S.B.
Tribunal:So they weren’t burnt?
Applicant:Not burnt. Yes, the copy of the original letter, I had left it at home and it was then taken by the P.S.B.
After this series of questions, the Tribunal member then discussed with the applicant the circumstances of her detention and the payment of the bribe to the officials by her sister and mother.
The Tribunal member then put to the applicant the suggestion that she was “basically an ordinary member rather than the leader or an organiser”. The Tribunal member supported this suggestion with information that was in his possession from the Australian Department of Foreign Affairs (“DFAT”). The applicant then responded. The sequence of this exchange was noted in the transcript at pages 14 and 15 and is reproduced as follows:
Tribunal:Now assuming that I do accept that you were a Falun Gong practitioner in China, your description of your activities there suggests to me that you were basically an ordinary member rather than a leader or an organiser. Now, reports from the Australian Department of Foreign Affairs note that the Chinese authorities are less interested in individual members practising alone than those actively, than those who were core members. The report states that the Chinese government’s campaign against Falun Gong has targeted the leaders and organisers of the organisation and those with some degree of influence or recognition. It states that the main criterion for selecting individuals for prosecution while releasing others appears to be the degree to which an individual has played a leadership or organisational role in Falun Gong. Would you like to comment on that?
Applicant:(not audible) My part is special in Falun Gong. I’ve been very active (not audible). We learned the Falun Gong in groups and I was inducted as a group leader. To print materials and to distribute the materials. To propaganda about Falun Gong, saying Falun Gong is good. P.S.B. arrested the leader of the station and arrested me and it, three of us, were arrested. One of them was the station leader, her name is Ma (not audible). Ma is the surname. The other one is Kwan (not audible). Kwan is the surname. And we were detained and we [had] to write a declaration to say that we would give up Falun Gong.
Tribunal:Did you write that declaration?
Applicant:I didn’t. That’s why I was beaten up.
The Tribunal member then continued with a further sequence of questioning regarding the applicant’s arrival in Australia and other issues.
In the Tribunal’s decision under the heading of “Findings and Reasons” the following conclusions were drawn:
“I accept that she is a Falun Gong practitioner. However, on the basis of her extremely limited knowledge of Falun Gong philosophy and faulty knowledge of some of the principal exercises, I am unable to accept that she was a group leader.
I find that she was an ordinary Falun Gong member of no particular prominence.
I note that she states that she ceased her Falun Gong activities after the imposition of the 22 July 1999 ban on the movement.
I find implausible, and do not accept, that having stopped all Falun Gong activities in response to the ban, implying concern not to run afoul of the of the law on this issue, she would take the risky step of openly protesting the ban to the authorities in a series of letters.
The applicant linked her claimed detentions to the writing of these letters and to being a group leader of her station. Having rejected both these claims, and noting that she ceased her Falun Gong activities when the movement was declared illegal, I am unable to accept that she was ever detained. In making this finding, I also take into account country information (for example, DFAT: Falun Gong aka Falun Dafa in China, CIR No. 397/99, 5 November 1999, CX38557) which states that Falun Gong practitioners who were detained were people who had been involved in Falun Gong activity, including exercising in public or participating in protest activity, after the ban came into effect.” (CB pp.91-92)
Counsel for the applicant, in pleading ground 5(d) above (paragraph 15), set out twelve issues that were claimed that a fair minded and informed person would not draw from that sequence of questioning by the Tribunal member supported by the country information as supplied by DFAT and the consequential suggestion that the Tribunal member demonstrated a reasonable apprehension of bias in his decision making. The twelve items listed under ground 5(d) included some issues that were raised at different times during the hearing and those that are reproduced above. These should be set to one side for the purpose of the available analysis. However, the material raised in these points did not enliven issues that were of a different nature to the extracts of the Tribunal hearing and the consequent conclusion drawn by the Tribunal member. Having considered the sequence of questions raised with the applicant during the relevant parts of the Tribunal hearing, I do not believe the argument raised by Counsel for the applicant can be sustained and considered in the context of the test set out in Ex parte H or NADH.
Conclusion
For the reasons set out above, I cannot accept that the claims pleaded by the applicant that the Tribunal’s decision was infected by jurisdictional error can be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 June 2005
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