Vdaz v Minister for Immigration
[2004] FMCA 310
•17 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VDAZ v MINISTER FOR IMMIGRATION | [2004] FMCA 310 |
| MIGRATION – Protection visa – whether jurisdictional error – whether breach of s.424A. |
Migration Act 1958, ss.36(2), 91R, 424A
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 197 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559,
MIMIA v Wu Shan Liang (1996) 185 CLR 259
Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407
NACB v MIMA (2002) FCAFC 140
Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548
Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424
Kumar v MIMA (1999) FCA 156
Re Refugee Tribunal Ex parte Aola (2000) 204 CLR 82
Muin v RRT (2002) 190 ALR 601
MIMIA v Totoh (1995) 183 CLR 273
Yong v MIMIA (2000) FCA 1391
SBBS v MIMIA (2002) FCAFC 361
MIMIA v Alshamry (2001) 110 FCR 27
| Applicant: | VDAZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 791 of 2002 |
| Delivered on: | 17 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 4 March 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. A. Krohn |
| Solicitors for the Applicant: | MSC Legal Services |
| Counsel for the Respondent: | Mr. C. Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 791 of 2002
| VDAZ |
Applicant
and
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
The Applicant seeks review of a decision made by the Refugee Review Tribunal (the RRT) on 22 April 2002. The applicant is a male citizen of the People's Republic of China who arrived in Australia on 3 April 2001. On 5 April 2001 he lodged an application for a protection visa with the department of the Respondent. The Applicant had initially filed an application in the Federal Court on 17 June 2002 which was transferred, by consent, from the Federal Court to the Federal Magistrates Court.
In the application currently before this court the Applicant relies upon an amended application filed 20 September 2002. In support of the application the Applicant has further relied upon contentions of fact and law filed 24 February 2003 and supplementary contentions of fact and law filed 14 March 2003. The Respondent relies upon contentions of fact and law filed on 4 March 2003, together with supplementary contentions of fact and law filed 11 March 2003. The court received a court book which did not provide the decision record of the delegate dated 23 April 2001. This document was provided in a supplementary court book filed 28 February 2003.
The Applicant sought to rely upon what is described as the "Applicant’s Supplementary Court Book" which provides transcript of the hearing of the Applicant's case conducted by the RRT on 5 March 2002 and 25 March 2002. The supplementary submissions of the parties address issues arising from that material. The accuracy of the transcript is not in dispute.
Counsel for the Applicant sought to rely upon the grounds set out in the Applicant's contentions of fact and law and these were the subject of a response by the Respondent both before the Court and in the Respondent's contentions of fact and law. It was noted that the grounds set out in the Applicant's contentions of fact and law generally reflect the broad grounds set out in the Applicant's amended application filed on 20 September 2002. It was therefore not necessary for the Applicant to file a further amended application, although it is noted that the grounds in the Applicant's contentions are somewhat different to those set out in the amended application. For the purpose of this decision I rely upon the grounds agitated by the Applicant in the contentions of fact and law which, as indicated, were the subject of a response by the Respondent.
Jurisdictional Error
It is appropriate to set out the broad principles which now apply in relation to the issue of jurisdictional error since the High Court decision in the matter of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 197 ALR 24.
In considering the issue of jurisdictional error in my view the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
General Background
The RRT had found that the Applicant is a national of the People's Republic of China. In its decision the RRT set out in some detail the Applicant's claims and noted that a number of claims were made initially in the application for a protection visa whilst others were then made in the application for review of the delegate's decision. Further claims were then made at the hearing before the RRT.
In his application for protection visa dated 4 April 2001 the Applicant claimed that he was a practitioner of Falun Gong. He claimed that his interest in Falun Gong commenced four and a half years ago and that he started to read about Falun Gong, which he understood to be a traditional Chinese cultivation practice known as Qigong brought to the public by Mr Li Hogzhi in 1992. He refers in his application to the principles of Falun Gong and states that he took an active part in its activities. He stated:
“We organised many kinds of activities, such as public exercise, meetings, and protests. Later I became one of the leaders in our centre.”
The Applicant refers to the Chinese government outlawing the Falun Gong group on 22 July 1999 and states that he did not accept the Chinese government's action. The Applicant claims he participated in a public Falun Gong exercise on 2 August 1999 and that his group had been detained. He claimed the group was forced to denounce Falun Gong and that 10 days later he lost his job. He continued his activities with Falun Gong but avoided police attention. He further claimed that Falun Gong is regarded as "an anti-government organisation" and that its practitioners risk arrest and detention. But still he did not give up Falun Gong as it had become his "life belief". He claims that with the help of friends and after paying "big money" he obtained a passport and came to Australia. He believes if he went back to China and practised Falun Gong he would be persecuted.
Upon review of the delegate's decision the Applicant claimed that he disagreed with the delegate's decision and gave the following reasons:
·The finding by the delegate that the applicant departed China without incident and that this would be improbable for a dissident is rejected by the applicant who claimed that many people under surveillance had left China on their own passport legally.
·Contrary to the delegate's finding the applicant did have a leadership role and was in charge of organising meetings, public exercising and protests and had a knowledge of Falun Gong principles.
·It was wrong to find that only Falun Gong leaders and/or those who organised public activities or protests were subject to penalties and that ordinary members who practised in private were not subject to penalties; rather anyone who practised "would be detained and arrested".
·Because people live at close quarters it is not possible to practise Falun Gong without drawing the attention of neighbours.
·Master Li Hongzhi has said it was advantageous to practise collectively and so it is wrong to find that Falun Gong does not require public displays.
At the hearing on 5 March 2002 the Applicant claimed that he obtained a passport in a false name to facilitate his departure from China and was obtaining documents to support the claim as to his true name. The RRT advised the Applicant that as it had considerable experience with forged documents from China it was in his interest to provide the strongest possible evidence to support the authenticity of any document he wished to put to the RRT. The Applicant submitted three photographs, one showing him allegedly taken on 4 March 2002 and showing injury which occurred during February 2000 when the Applicant was "beaten by police while detained at a re‑education camp" and when his right collarbone was fractured and he suffered a deep slash to his chest from a chunk of wood. The RRT sought medical opinion as to the nature of the injuries shown in the photograph and possible cause.
The other two photographs allegedly showed a group of what appeared to be Falun Gong practice some days before the hearing in a park. The RRT asked for further details concerning the two photographs. The Applicant submitted a letter dated 4 March 2002 by a third party and other signatories who claimed to have known the Applicant since he came to their Falun Gong practice site and asserting that the Applicant is a Falun Gong practitioner who had stayed with them on several occasions.
In a translated document dated 4 March 2002 the Applicant submitted further information which, according to the RRT summary, provides the following information:
·Amplifies the circumstances that led to the applicant's loss of employment.
·Narrates the applicant's deteriorating health in 1996 and his involvement with Falun Gong.
·Claims a police raid on a practice site attended by the applicant in July 1999 (new claim).
·Information on the applicant's arrest on 2 August 1999 for participating in a Falun Gong demonstration in front of the municipal government building.
·His imprisonment on 20 December 1999 "for 3-4 months" where he was beaten and his collarbone fractured (new claim).
·A claim that the applicant applied for a passport "with a changed name" (new claim).
·A claim that the applicant joined a "local Falun Gong organisation" in Australia and practises Falun Gong every day (new claim).
·Took part in the demonstration at the Chinese consulate-general (new claim).
Further evidence was submitted to the tribunal on 18 March 2002 consisting of a letter signed by the Applicant dated 17 March 2002 stating why the Applicant had offered additional claims no sooner than 5 March 2002, and his family circumstances including the death of his mother, the death of his sister - a Falun Gong practitioner who it is alleged died in custody and the consequent hardship suffered by the sister's family, the Applicant's concern that his family would be harassed if it became known that he was applying for refugee status in Australia.
Attachments to that letter included medical certificates regarding the photographs submitted by the Applicant on 5 March 2002 showing injuries claimed to have been suffered in February 2000 and the several photographs claiming to show the Applicant in Falun Gong practise in Sydney and his involvements in its activities. Also attached was a certified Chinese death certificate with a certified translation which appears to relate to the death of a male person, the relevance of which is not readily apparent to the court. Other documents with certified translations were also provided.
At the hearing on 26 March 2002 the Applicant submitted two further documents to the RRT, including a copy of a labour insurance certificate of the Applicant with an identifiable photograph of him and a certified translation, together with another death certificate with a certified translation which do not appear in the court book of which it is presumed to relate to the Applicant's sister. At the further hearing on 26 March 2002 the RRT put a range of issues to the Applicant including his knowledge of Falun Gong principles and other matters which are clearly relevant to the application.
There is no dispute in the present application that there was sufficient country information to suggest that serious consequences followed the decision of the Chinese government on 22 July 1999 to ban the Falun Gong movement as an illegal organisation. Reports referred to by the RRT as "independent information" includes the United States Country Reports on Human Practices - 2000 released by the Bureau of Democracy, Human Rights and Labour in February 2001 which states in part:
“... hundreds of Falun Gong leaders had been imprisoned and thousands of Falun Gong practitioners remained in detention or were sentenced to re-education - through labour camps or incarcerated in mental institutions. Various sources report approximately 100 or more Falun Gong practitioners died as a result of torture and mistreatment in custody ... the government's respect for religious freedom deteriorated markedly during the year, as the government conducted crackdowns against underground Christian groups and Tibetan Buddhists and destroyed many houses of worship. The government significantly intensified its campaign against the Falun Gong movement, which it had accused in October of being a reactionary organisation as well as against "the cults" in general.”
The same report provides the following under the heading “Torture, and other Cruel, Inhumane or Degrading Treatment or Punishment”:
“During the year there were numerous credible reports of abuse of Falun Gong practitioners by the police and other security personnel, including police involvement in beatings, detention under extremely harsh conditions, and torture (including by electric shock and by having hands and feet shackled and linked with crossed steel chains)
...
... In December 1999 the People's Daily reported that a suspect died in police custody in Anhui Province after refusing to admit to being a thief. Various sources report that approximately 100 or more Falun Gong adherents died during the year while in police custody. Many of their bodies reportedly bore signs of severe beatings or torture, and statements by released Falun Gong detainees regularly attest to mistreatment. Many of the bodies of Falun Gong practitioners who died in police custody were cremated before relatives could examine them.
... In late 1999, according to credible reports, the government started confining some Falun Gong adherents to psychiatric hospitals. At year's end, according to Falun Gong, hundreds of practitioners were confined to mental hospitals. Authorities also confined other persons accused of non-violent political crimes and other offences to mental hospitals.”
The RRT referred to a Department of Foreign Affairs and Trade country information report number 397/99 dated 5 November 1999 which states in part the following:
“... The Ministry of Public Security (police) announced that all activities in support of Falun Gong were prohibited. This included: posting pictures or insignia; distributing books or other material; advocating group Falun Gong sessions; petitioning the authorities or holding gatherings, parades or demonstrations in support of Falun Gong; inciting disturbances of public order by spreading rumours; and conducting activities that resisted government decisions. Violation of the above would result in criminal or administrative punishment, "according to the seriousness of the case".”
An updated report from DFAT circular number 58/00 dated 4 February 2000 provides the following:
“Reports claim that group members are rounded up in cities across the country including Dalian, Shenyang, Changsha, Chongquing, Bejing, Wuhan and Tianjin. Thousands of Falun Gong practitioners were reportedly detained and held in stadiums around the country (US Department of State 1999 Annual Report on International Religious Freedom for 1999 China, September). Reports from a Hong Kong-based newspaper claim that 10,000 people coming from Hebei were arrested and escorted to Fengtai Sports Ground and then sent to Landfang Institute of Agricultural Science. It is claimed that these people were detained for two days without supply of any water or food.”
Grounds
Ground 1: Jurisdictional Error – Relevant considerations; error in interpreting applicable law
The Applicant submitted that the RRT fell into jurisdictional error in failing to take account of relevant material and incorrectly interpreting and applying the law in relation to the definition of "persecution" in the assessment of a well-founded fear of persecution.
The Applicant had submitted that the RRT also fell into error in its interpretation of the term “for reasons of religion”.
Reliance was placed upon the Full Court decision in the matter of Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 and in particular the decision of Merkel J at pp 62-64.
“In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 Brennan J said
…
… In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration (see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put: Noble v Repatriation Commission (unreported, Federal Court, Full Court, No VG 308 of 1997, 3 November 1997) at p 16. However, ultimately the RRT is under a duty to fulfil its statutory obligation to "review the decision" before it and to do so according to s 420(2), which requires it to act according to the "merits of the case". Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the RRT. As stated above, the RRT is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention.
Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: …”
Under the first ground of jurisdictional error the Applicant relied upon a number of sub-headings in the Facts and Contentions filed with the Court referred to earlier in this judgment and it is convenient to set out those sub-headings and submissions made on behalf of the Applicant:
Ground 1(a): Detention of the applicant and forced recantation of Falun Gong detention – a relevant matter
It was submitted that consideration of whether the Applicant before the RRT is a person to whom Australia owes protection obligations because he is a refugee will frequently require as a starting point consideration of the past in general and specifically whether the Applicant has in the past suffered persecution for a reason relevant to the Convention (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). It was submitted that in the present case the Applicant claimed to have suffered a raid by police in July 1999 and more importantly that he was detained by Capital PRC police together with other practitioners of Falun Gong in August 1999. Reference was made to the claims made which are set out in the Court Book and criticism was made of the RRT in not making a finding about the Applicant’s claims that practice equipment was destroyed on the occasion of the police raid and no reference was made to the claim that during ten days detention the Applicant was beaten. Jurisdictional error is said to have occurred by the failure of the RRT to consider and determine the question of whether the Applicant was beaten and if so whether the experience amounted to persecution. Reference was made to the treatment of the Applicant’s sister where it was claimed she was imprisoned, ferociously beaten and killed. It was submitted the RRT did not reject that claim and its failure to advert to and determine the significance of the claim of beating cast “serious doubts on the Tribunal’s conclusion that the Applicant did not experience persecution in 1999 and must cast serious doubt upon the Tribunal’s condition that “I am unable to accept that the Applicant’s claimed fear of future harm because of the past actions of the authorities towards him is well-founded”.
The Respondent submitted that it is not clear whether the contention relates to the specific police raid on 28 July 1999 and in any event submits that the RRT did deal with the matter when it recited the evidence of the Applicant. No express claim was made at the hearing that the Applicant had been beaten in the course of the police raid on 28 July 1999 and it was submitted the Applicant has not contended that the RRT mischaracterised the Applicant’s evidence in that respect. As to claimed detention on 2 August 1999 it was submitted that it could not be claimed that the RRT failed to consider the Applicant’s claim that he was beaten at that time as it expressly recited the Applicant’s evidence given at the hearing that he “was beaten” during his claimed ten day detention.
It was submitted that the RRT was entitled to only accept that the Applicant was “briefly detained and made to denounce Falun Gong” and that the RRT reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error” (see MIMIA v Wu Shan Liang (1996) 185 CLR 259 at 272).
The Respondent further referred to the decision of McHugh J in Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [65]:
“… It is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal”.
It was submitted on behalf of the Respondent that the RRT found that the Applicant’s evidence was unsatisfactory and found several aspects of the claims to be implausible. There was nothing in the reasons of the RRT according to the Respondent’s submissions to suggest it did not consider the Applicant’s evidence as given at the hearing about the claimed police raid on 28 July 1999. The RRT found that the raid did not constitute persecution for the purposes of the Convention.
In my view the Respondent’s submissions in relation to this issue are correct. It is not appropriate for this Court on a review of this kind having regard to the principles of law to which I have referred to analyse in minute detail the reasoning of the RRT in the manner referred to in the Applicant'’ submissions. I am satisfied that there is no error disclosed in the analysis of these events said to constitute Ground 1(a). The RRT has considered and recorded all relevant matters though drawn a conclusion which is obviously one not acceptable to the Applicant. That does not mean that there is an error of a kind which attract judicial intervention on a review of this application. Ground 1(a) fails.
Ground 1(b) : Assault of the applicant in detention – definition of “persecution”, “well founded fear of persecution”
The Applicant submitted that by way of alternative the RRT had misinterpreted the term “persecution” in the definition of refugee pursuant to ss.36(2) and 91R of the Act. Physical assault, it was submitted, in the course of detention is enough serious harm such as may constitute persecution especially in the context of “independent information” cited with approval by the RRT to the effect that such beatings of Falun Gong members are frequently savage and indeed fatal. It was submitted the wrong test had been applied in determining whether Australia’s protection obligations are engaged. It is not necessary for one self to have suffered persecution in order to have a well founded fear of persecution. It is sufficient according to the Applicant’s submissions to have such fear on the basis of past or present events which would included threats, police harassment which might escalate or pass persecution of others, all of which were claims accepted or noted or not rejected by the RRT in the present case. It was submitted that it should be self-evident that “serious harm” constituting persecution pursuant to s.91R of the Act could certainly include beating in the course of interrogation by the authorities, more so as the RRT itself apparently accepted independent information that detention and beating of Falun Gong members does occur in the PRC.
The Respondent submitted there is nothing to suggest the RRT misapplied the definition. It set out its understanding of “persecution” which appears in the Court Book at p.75 and it was submitted there is no requirement for the RRT to set out its understanding of “persecution” in its “findings and reasons” (see NACB v MIMA (2002) FCAFC 140 at paragraph 20).
In my view the RRT has not misinterpreted the meaning of “persecution”. I accept that it is not necessary for the meaning and understanding of that term to be repeated in the “findings and reasons” section of the RRT decision. Ultimately the complaint of the Applicant in my view appears to one where emphasis upon the events as described by the Applicant and/or interpretation of those events in the manner preferred by the Applicant is the real complaint in circumstances where the RRT has drawn adverse conclusions as to the nature of the Applicant’s evidence before it and then drawn conclusions in relation to the important issue as to whether or not the Applicant had a well founded fear of persecution. I can find no error in the RRT’s reasoning in relation to this matter and accordingly Ground 1(b) should fail.
Ground 1(c) : Forced recantation of belief – definition of “persecution”, “well founded fear of persecution”
This in a sense relates to the issues raised in support of Ground 1(b) which has already been dealt with in this judgment. A specific issue was raised in relation to what is described as the “forced recantation of belief” and it was submitted that it is persecution if a person in obedience to his or her beliefs practices publicly or in an official place that is prescribed while private or “official” practice may be permitted (see Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548-549 per Wilcox J agreeing with reasons of Merkel J 563-568; Gray J 552-553).
The Respondent submits and I have accepted that the RRT has correctly set out the requirements of the test and not misinterpreted the meaning of “persecution” or “well founded fear of persecution”. It was further submitted that in applying that test it was open to the RRT to make a finding of fact in the context that being forced to write a “repetence letter” did not constitute persecution. The Respondent distinguished the decision of the Court in Wang on the basis that dealt with a different question namely whether a failure by a decisionmaker to consider whether confinement by the authorities of religious practice to private practice constituted a misinterpretation of what constituted persecution.
It was submitted that the RRT had considered the Applicant’s claim of his commitment to Falun Gong and his claim that it would be difficult to practice Falun Gong in private without drawing the attention of neighbours. It recited the Applicant’s claims and summarised the Applicant’s evidence to the effect that “his practice was not secret as it was evident to others in the residential compound”. It was submitted that effectively the Applicant is claiming the RRT should have made a different finding in relation to whether or not the Applicant would practice Falun Gong in private upon his return to China.
Reference was made to the following extract from the RRT decision which appears at Court Book 94.6 as follows:-
“The main focus of Falun Gong is self cultivation and as Li Hongzhi has stated that private practice is acceptable … it is open to the applicant to practice privately in reasonable safety. As private practice meets the requirements of the practitioner, it follows that private practice is not a constraint of such severity as to constitute convention persecution.”
The respondent submitted in the alternative that even if those considerations identified in the Wang decision as to communal or public expression of religion applied to the practice of Falun Gong then on any view the passage to which reference has just been made discloses the RRT applied those principles. The RRT expressly considered whether or not the applicant would practice Falun Gong in private and further whether being forced to do so would constitute persecution for the purpose of the Convention. There is no error of law according to the respondent in the manner in which the RRT considered that material.
In my view whilst the forced recantation may superficially appear to attract the application of the principles set out by the Court in the Wang decision, it is clear from the passage to which reference has been made by the Respondent that the RRT was seized of the significance of a private and public practice of Falun Gong by the Applicant upon return to China. I accept the Respondent’s submissions that the conclusion reached by the RRT clearly addresses the relevant issue and presumably an alternative conclusion may have been reached depending on the facts then before the RRT. On the material before the RRT having regard to the conclusion referred to in the paragraph to which I have referred I am unable to determine any error to sustain Ground 1(c). That ground should fail.
Ground 1(d): Ban on public practice of Falun Gong – definition of “persecution”, “well founded fear of persecution”
The submissions by the Applicant in relation to this ground follow the same principles and what has been described as analogous reasoning relied upon in support of Ground 1(c). It was submitted that there has been jurisdictional error by holding that because on the Tribunals’ view of the facts the Applicant could practice Falun Gong privately in accord with an opinion of Master Li and without suffering persecution the Applicant has no well founded fear of persecution even though the Applicant claimed for Falun Gong his “life belief” communal practice was important and he would practice Falun Gong “wherever I am”. Further evidence was made to the suggestion by the Applicant that private practice was impossible because of the proximity of neighbours. This was submitted to be another relevant factor not determined by the RRT in breach of its obligations under the Act and generally as an inquisitorial tribunal. If the claim of fact was true then even if the RRT was not in jurisdictional error in considering the Applicant can avoid persecution by not practising in public the effect he would have to practice in private.
The Respondent submitted that in any event this issue is not similar to factors considered in Wang’s case. That case dealt with a different question namely whether a failure by a decision-maker to consider whether confinement by the authorities of religious practice to private practice constituted a misinterpretation of what constituted persecution. In the present case it was submitted that the RRT considered the Applicant’s claim of his commitment to Falun Gong and his claim that it would be difficult to practice in private without drawing the attention of neighbours. The RRT recited the claims in that respect and summarised the Applicant’s evidence to the effect that “his practice was not secret as it was evident to others in the residential compound”. It was noted that there is no contention that the RRT failed to make a finding on whether or not the Applicant would practice Falun Gong in private upon his return to China. Essentially it was submitted seeks to contend that the RRT should have made a different finding in that respect. It was submitted that is a question of fact for the RRT and there is no requirement for it to give a line by line refutation of the evidence in the case of the Applicant which it had rejected in that respect.
In my view it is correct that the RRT had properly addressed this issue as a fact finding process and I can see no jurisdictional error of a kind which would establish a basis for review on this ground. The RRT on a proper reading of the decision clearly considered the evidence of the Applicant and his commitment to Falun Gong and further made a finding of fact open to it that the Applicant could practice privately in reasonable safety (Court Book 94.6). Ground 1(d) should therefore fail.
Ground 1(e): Persecution as a “leader” of Falun Gong
It was submitted that jurisdictional error occurred when the RRT failed to take into account another relevant consideration namely whether the Applicant had a well founded fear of persecution as a leader of the Falun Gong movement.
As I understood the submissions for the Applicant reliance was sought to be placed upon claims by the Applicant that he was “a key member” of Falun Gong and had been in charge of organising meetings and protests. Reliance was then placed upon country information and in particular that information which refers to the criterion for selecting individuals for prosecution while releasing others appearing to be “the degree to which the individual has played a leadership or organisational role … especially … those suspected of organising demonstrations and other perceived acts of defiance after the banning of Falun Gong on 22 July … (Court Book 88.8 quoting DFAT country information report 397/99 5 November 1999).
It is relevant to note that the RRT specifically made a finding that the Applicant was not a “Falun Gong leader”. It referred to that finding in the context of being unable to accept that the Applicant’s “Falun Gong role precluded him from leaving the country on a passport in his true name”.
It was submitted by the Applicant that the finding should have been made of a well founded fear of persecution either as a Falun Gong leader or key member or organiser in circumstances where it was submitted it is clear “that the Tribunal has a false understanding of what is involved in persecution” or “has failed to properly have regard to the claim, and has proceeded in addition to defiance of logic”.
It was noted however that the Applicant accepted the Full Court authority in Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 that binds this Court to the extent that a want of logic by the Tribunal is not a jurisdictional error. Reliance however was placed upon the dissenting judgment of Finkelstein J in that matter.
The Respondent submitted that the RRT examined the extent of the Applicant’s involvement in Falun Gong and rejected the Applicant’s claim that he was a “key member and organiser”. It is not required to give a line by line refutation of that evidence or material (see Gurairajasignham).
In my view the Respondent’s submissions are clearly correct. I should add for the sake of completeness that this Court is bound by the majority decision in the Gamaethige case and in any event other authorities which clearly indicate that want of logic would not constitute jurisdictional error. In any event in the present case I can see no illogicality in the reasoning of the RRT which made an assessment on the available material as to the role of the Applicant with Falun Gong and having properly set out the meaning of the persecution and “well founded fear of persecution” has drawn conclusions open to it which do not demonstrate jurisdictional error. Rather than ignoring the Applicant’s evidence about being a “key member” or “leader” the RRT made a finding then open to it on the available material. Accordingly this ground should also fail.
Ground 1(f): Relevant matter – persecution of the applicant’s sister
This effectively repeats an earlier contention of failing to make a determination about the risk of the Applicant based on the suffering of the Applicant’s sister.
It was submitted by the Applicant that persecution of others particularly those in the same family or same perceived background may certainly cause a well founded fear of persecution. It was incumbent upon the RRT in the present case to make a determination about the risk of the Applicant based upon the suffering of his sister. In its findings and reasons it was submitted the RRT failed to do so and to that extent had fallen into jurisdictional error.
The Respondent referred to this issue in the context of weight attributed to the matter and the veracity of the Applicant’s claims. Weight, it was submitted, is a matter for the RRT (see Kumar v MIMA (1999) FCA 156 at [38] and cases referred to therein).
Reference was made to the Court Book at p.84.2 where the RRT after reciting the issue in relation to the Applicant’s sister asked the applicant why he believed he would meet a similar fate (to his sister). He replied that he believed he would because of his commitment to Falun Gong.
It was submitted having regard to that the RRT was mindful that the applicant did not claim that his fear was by reason of his familial association to his sister but rather that as a Falun Gong practitioner he might suffer “a similar fate” to that of his sister. The RRT expressly addressed and made findings in relation to this claim at page 93.7 as follows:
“The applicant claims to have been imprisoned on 20 December 1999 for 3-4 months because of his sister’s’ Falun Gong activities. The implausible claim that he was imprisoned for a prolonged period because of his sister’s Falun Gong activities in his home, together with the vagueness of his claims as to how long he was imprisoned and his confused claims of who beat him in prison and for what reason, lead me not to accept this claim.”
It is clear to me that the RRT has considered this issue and reached a conclusion that was reasonably open and does not disclose jurisdictional error. There may be other cases where the relationship alone with a family member may in applying the correct interpretation of persecution and well founded fear of persecution lead to a different outcome. In the present case the issue was agitated and an assessment of the weight and value of the applicant’s evidence made by the RRT in the proper exercise of its powers. I cannot see any jurisdictional error arising out of this ground and accordingly it must fail.
Ground 2 – Denial of natural justice/procedural fairness
Essentially the arguments raised on behalf of the applicant in relation to this issue relied upon the “independent information” before the RRT. It was submitted by the applicant that the RRT did not give the applicant any or any proper opportunity to consider and respond to the independent information. This was claimed to be a denial of natural justice and reliance was placed upon the decision of the High Court in Re Refugee Tribunal Ex parte Aola [(000) 204 CLR 82,101 (41) per Gaudron and Gummow JJ 135 (142) per Kirby J, 143 (170) per Hayne J.
It was further submitted that there was a breach of natural justice or procedural fairness in not giving the applicant notice that it would apply some understanding of freedom of religion and conscience at variants with that of article 18 in the International Covenant on Civil and Political Rights despite Australia being a party to that covenant (see Wang 564 per Merkel J).
The respondent submitted that there was no express statutory obligation upon the RRT to bring to the attention of the applicant the country information upon which the RRT ruled.
Perhaps more significantly the respondent contended that a fair reading of the RRT’s reasons for decision confirms the country information recited by the RRT and was relied upon in the context of its consideration of whether Falun Gong’s practitioners in the applicant’s claimed circumstances would suffer persecution at the hands of the authorities.
It was further submitted that in any event there is no evidence or a suggestion that the applicant was mislead by the RRT and the position in the present case is clearly distinguishable from the circumstances in Muin v RRT (2002) 190 ALR 601.
In my view there is no jurisdictional error based upon the claimed denial of natural justice and/or procedural fairness in relation to country information. It is not necessary in my view for the RRT to provide a comprehensive list of all independent information which may be relied upon in the circumstance of this case. This application is distinguishable from the issues raised in Muin’s case. There can be no suggestion in the present case that the applicant was misled and indeed had agitated extensively relevant issues relating to Falun Gong and the treatment of that group as alleged by the PRC. It is clear to me that the applicant had ample opportunity during the course of the hearing to either challenge country information or present further country information which may have assisted his case. The major complaint in the present case seems to be based more on an interpretation of the available material and the conclusions drawn by the RRT in relation to that material rather than the suggestion that the applicant would have provided different material which may have led to a different outcome.
I am satisfied that there is no denial of procedural fairness or breach of natural justice as claimed.
In relation to the issue of denial of procedural fairness in the RRT’s application of its understanding of freedom of religion it is noted that the respondent submits that Falun Gong did not constitute a religion and even if it did the RRT by analysing the applicant’s voluntary curtailment of his Falun Gong practice had considered the issue consistent with the approach of the majority in Wang and consistent with article 18 of the UN declaration. It was further submitted that in any event the declaration is not part of Australian domestic law and it can be used having regard to a number of principles. First the Court should favour a construction of a statute or subordinate legislation so far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s International obligations. Secondly it was submitted that an International Convention may play a part in the development of the Court’s common law and may be used as a legitimate guide in developing the common law. Thirdly the provisions of an International Convention may be relevant as to the exercise of a statutory discretion and ratification of a convention can give rise to a legitimate expectation that a decision maker will exercise that discretion in conformity with the terms of the convention (see per Mason CJ and Deane J in MIMIA v Totoh (1995) 183 CLR 273). In the present case it was submitted the primary obligation upon the RRT did not involve an exercise of a discretionary power but rather required the attainment or satisfaction that the relevant criteria in respect of sub-class 866 visa had been satisfied (see Yong v MIMIA (2000) FCA 1391 per Goldberg J at [11-12]).
In my view applying the reasoning of Goldberg J in Yong the Respondent’s submission is correct. In any event I am satisfied that essentially the issues sought to be agitated by the Applicant even assuming that Falun Gong is a religion which is a matter that I do not need to decide, has been appropriately dealt with without any denial in this instance of procedural fairness or natural justice as the RRT did as submitted by the Respondent consider the Applicant’s private pursuit of his Falun Gong activities.
I am further satisfied that in any event there is no evidence as submitted by the Respondent before the Court as to what matters the Applicant would have presented to the RRT which would have disclosed an arguable case that the result of the RRT would have been different (see SBBS v MIMIA (2002) FCAFC 361).
For those reasons the claim of jurisdictional error arising from the alleged breach of procedural fairness and/or natural justice must fail.
Ground 3 Failure to s.424A
This raises the question again in relation to the obligation to provide the Applicant in writing with information which the RRT thought might be the reason for an adverse decision. Specifically it was submitted that this was not information which the RRT was not obliged to provide to the Applicant under the exception in s.424A(3) of the Act as the information although not about the Applicant was not “just about a class of persons which the Applicant … was a member”. The information was also about the operation of the police and the authorities in the PRC. The Applicant was unable to refer to a specific authority in relation to that issue and interpretation.
The Applicant had referred to the decision of MIMIA v Alshamry (2001) 110 FCR 27 that the section be given a “purposive construction” and submitted this would lead to a narrow interpretation of s.424A(3)(a) as an exception to the provision in s.424A(1).
The Respondent submitted that the Alshamry case concerned whether information provided by a visa applicant at an airport interview was subject to the exclusion contained in s.424A(3)(b). However if the principles apply generally to the interpretation of s.424A(3) it was submitted that the “information” relied upon by the RRT was comprehended by the exception in s.424A(3)(a). The information it was claimed was general independent country information about the practice of Falun Gong in China and the extent to which practitioners of Falun Gong were harassed by the authorities.
In my view it is clear that the information to which reference was made earlier in this judgment and which was provided in more detail in the RRT decision clearly does fall within the exception contained in s.424A(3)(a). It was not information specifically about the Applicant but did relate to a class of persons of which the Applicant is a member namely a Chinese citizen and a citizen who is a practitioner of Falun Gong. I accept that that information may often involve reference to police and authorities and otherwise to persons who are not members of the class or of persons as the Applicant but does not detract from the conclusion that I have drawn as to the proper interpretation of that information falling within the exception as described.
Conclusion
In my view the appropriate orders are that the application be dismissed with costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of McInnis FM,
Associate:
Date: 4 March 2004
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