NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a Judge of the Court, dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had affirmed a decision of a delegate of the respondent ("the Minister") refusing to grant the appellant, a citizen of the People's Republic of China ("PRC"), a Protection (Class AZ) Visa. 2 The appellant arrived in Australia on 2 July 1998. His application for a protection visa was lodged on 28 July 1998 and refused by a delegate of the Minister on 16 May 2000. The appellant sought review of the delegate's decision in the RRT on 15 June 2000 and the RRT affirmed that decision on 20 December 2001. An application for review of the RRT's decision filed in this Court on 15 January 2002 was dismissed by the primary Judge on 1 May 2002.

background 3 The appellant was born on 13 August 1969 in the Liaoning Province of the PRC. He attended secondary school between 1976 and 1986 and obtained tertiary qualifications in law in 1990. He claimed that he had been prevented from working in the legal field immediately after his graduation because of his participation in the 'pro-democracy' movement in 1989. Consequently, he had been employed at a plastics factory from 1990 to 1994. However, after further examinations, the appellant obtained employment in 1994 at Fushun Intermediate People's Court in 1994 as a bailiff. His duties in fulfilling this role were said to include the movement of prisoners in between the courts and jails and carrying out sentences of capital punishment on condemned persons. 4 The appellant claimed that in the course of his duties he became aware that the bodies of executed criminals were routinely dissected by PRC officials without the consent of the deceased or their families. The appellant himself claimed to have witnessed the dissection of the body of a person known to him. The appellant was aware that this person had been falsely accused. The appellant said that when ordered to carry out the execution he had fainted, but was carried to the place where the body was subsequently dissected. 5 After this experience, the appellant said that he was not able to carry out any further executions. He completed further examinations which rendered him eligible to work as a "primary judge" in the Fushun Intermediate People's Court. 6 From June 1996, the appellant conducted a personal investigation that was said to reveal, inter alia, that almost 100 per cent of the bodies of executed criminals were dissected for medical purposes without consent. The appellant presented his findings in a report, which he sent to the "Central Commission for Inspecting Discipline", the High Court of the PRC and the Liaoning Provincial Commission. The only result of this was that those three authorities established a committee to investigate the appellant's conduct. According to the appellant, the investigating committee made negative findings against him, leading to his dismissal from the Fushun Intermediate People's Court. The appellant claimed that he had been subjected to mistreatment, incarceration and torture at the hands of the authorities in consequence of his report. Nevertheless, this did not deter the appellant publishing and distributing in March 1997 a further petition concerning human rights. This led to another period of detention and torture by the Public Security Bureau which did not end until May of the same year. 7 With the assistance of a contact in the Provincial Public Security Department, the appellant left the PRC for Tonga on a Chinese passport in November of 1997. Even in Tonga the appellant maintained his fear of the PRC authorities and, for that reason, resolved to travel to Australia. As noted, he arrived in this country on 2 July 1998. THE RRT'S REASONS 8 The RRT held a hearing on 10 April 2001, in which the appellant gave evidence. The RRT, in the course of the hearing expressed doubts about a number of aspects of the appellant's claims and about the authenticity of certain documents upon which he relied in support of his claims. The appellant provided the RRT with additional written submissions on 23 April 2001 addressing matters raised by the RRT including "the RRT's doubts about my position as a Junior Judge". 9 In its reasons, the RRT recounted in some detail the substance of its questioning of the appellant. In particular, it recounted the questions concerning the authenticity of what it described as a "census document" which the appellant said supported his claims. The RRT told the appellant that the tenor of its questions indicated that it had doubts about the authenticity of the document. Notwithstanding this, the appellant made no reference to the census document in his supplementary written submissions. 10 In its reasons, the RRT noted that the appellant claimed to be involved in pro-democracy activities in 1989. It found, however, that since he had subsequently been employed within China's legal system, he was no longer a person of interest to Chinese authorities as a result of any pro-democracy activities undertaken in 1989. 11 The RRT observed that the appellant's principal claims arose from what he said were his activities as a Judge in the Chinese legal system. The RRT accepted that prisoners had been executed in Liaoning Province by methods consistent with those referred to by the appellant and that body parts had been taken by the authorities for use in organ transplant operations. 12 The RRT said that it had strong doubts about other aspects of the appellant's evidence, in particular his claim that he was employed as a "primary judge" and his claim to have witnessed the dissection of the body of an executed person. It stated that it had found no record of the appellant's name among lists of judges appointed in Liaoning. The RRT was not satisfied that the census document was genuine. Nonetheless, the RRT accepted that the appellant had been employed in some capacity in the Fushun court system. It reached this conclusion partly because it was satisfied that the appellant's evidence about court procedures and executions came from firsthand knowledge. The RRT also further accepted that the appellant had been employed as a court bailiff and that carrying out executions had been one of his duties. 13 Despite these findings, the RRT did not accept the appellant's claim to have actually witnessed the dissection of the body of an executed criminal. It made this finding on the basis of what it said were inconsistencies in the appellant's evidence. The RRT specifically rejected the appellant's evidence that the dissection had been carried out in a mini bus. It did so on the ground that it was "not conceivable" that dissection of body organs for transportation purposes could have been carried out in conditions that were not medically sterile. The RRT also found it hard to accept that the authorities would have placed a person who had just failed to carry out an execution (as the appellant claimed) in a position where he could observe the dissection of the body of that same person. 14 The RRT then said this: "the issues of the [appellant's] alleged observation of the dissection of the executed person's body, and of his later appointment as a primary judge are fundamental to the [appellant's] case. It was his claimed motivation arising from what he claimed he had seen, and his claimed capacity as a judge to initiate inquiries, which he said led to his production of a report to higher authorities, and all the consequent events. Having found that the [appellant] was not a witness to such a dissection, and given its lack of satisfaction about his claimed appointment as a judge, it follows that the Tribunal is not satisfied that any of the other claimed events took place. … It followed that the Tribunal is not satisfied that the [appellant] prepared a report on corruption, was dismissed from his job, was placed in a mental hospital, was detained in any other way [or] physically mistreated in China. Nor is it satisfied that he prepared a petition about his own human rights". 15 For these reasons, the RRT was not satisfied that the appellant had a well founded fear of persecution in the PRC.