NAQR v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2004-08-11|Before: McHugh J, Beaumont J

introduction 1 This is an appeal from NAQR v MIMIA [2004] FMCA 316 (Barnes FM), dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa. 2 The appellant applied for the visa on 29 January 2002. The delegate's decision refusing the visa was made on 26 April 2002. The appellant applied to the Tribunal for review on 13 May 2002. On 7 March 2003 the Tribunal wrote to the appellant informing her that it was unable to make a favourable decision on the information before it and inviting her to a hearing on 8 April 2003. The appellant accepted the invitation, but did not attend the hearing. In those circumstances, as the Tribunal noted, s 426A of the Migration Act 1958 ("the Act") permitted it to proceed to make a decision without taking any further action to allow the appellant to appear. The Tribunal handed down its decision on 29 April 2003. 3 The appellant claimed to fear persecution for reason of her religion in China. She claimed to be a practitioner of Falun Gong, and to have been detained, mistreated and dismissed from her employment in a foreign trade company after attending a Falun Gong rally in Beijing in April 1999. No dates or details were provided. She claimed that she would be arrested and detained if she returned to China and would be unable to practice Falun Gong privately, although she acknowledged that she was not a Falun Gong leader and was able to leave China legally on a passport in her own name. 4 The Tribunal was not satisfied that the appellant's fears were well founded, noting that she had not attended the hearing and that her claims that she would be mistreated, unable to find employment and unable to practice Falun Gong privately were inconsistent with independent country information before the Tribunal and with the appellant's past employment. 5 It is apparent that the appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its assessment based on independent country information that her claimed fears were not well founded, since it is unlikely that refugee status is to be granted to a person whose account, even if plausible and coherent, is inconsistent with the Tribunal's understanding of conditions in that person's country of nationality: Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J (although here the Tribunal has not found that appellant's claims "plausible and coherent"). 6 In summary, the Tribunal's decision proceeded as follows. 7 The Tribunal set out the appellant's claims, including the following: (i) She became a Falun Gong practitioner for health reasons and found herself being targeted when the Chinese government began its crackdown on the movement. (ii) She had been employed in the private sector, had been detained and mistreated when she was mistaken for a Falun Gong leader in her work group, was released when the authorities could not substantiate her association with the local Falun Gong and was ultimately sacked because of her religious beliefs. (iii) Several of the appellant's co-practitioners had similar experiences and fearing for her life, she decided to flee. 8 In response to country information regarding the treatment of Falun Gong adherents and concerns raised about the appellant's credibility, the appellant claimed: "whoever practi[s]es Falun Gong, no matter secretly or publicly, will definitely be jailed as soon as the practice is known to the relevant authorities." 9 The appellant further claimed that the authorities specially target people who return from overseas as it is believed that these people "…have spread Falun Gong abroad and damaged the benefit of the country." 10 For these reasons, the appellant claimed she would be unable to practise Falun Gong privately if returned to China, although she acknowledged that she was able to leave China legally on a passport issued in her own name and was not a Falun Gong leader. 11 The appellant accepted that some Falun Gong adherents returning from abroad have not been detained or penalised by the authorities when they agreed to give up the practice of Falun Gong, but feared that if she forswore the practice of Falun Gong, she would have health problems. 12 Using independent country information, the Tribunal set out a brief history of the Falun Gong movement, including its development and its 'policy of confrontation with authorities'. 13 Under the heading "Overview of types of treatment of Falun Gong practitioners since 1999", the Tribunal stated that there was a 'crackdown against Falun Gong' in July 1999; that by October 2000, the government was demonstrating less tolerance for 'rank-and-file practitioners who continued to defy the government by participating in protest rallies'; and that there were increasingly more restrictive measures implemented during 2001, including, inter alia, more severe sentences, 'allegedly incorporating the use of psychiatric institutions to detain and "re-educate" Falun Gong practitioners'; and an 'increase in systematic and state sanctioned violence against Falun Gong practitioners'. 14 Turning to 'evidence of differential treatment of leaders and followers', the Tribunal cited reports in 1999 and 2001 by DFAT, which, the Tribunal said, indicated that 'the Chinese government's campaign against Falun Gong had targeted the leaders and organisers of the organisation, and those with some degree of influence or recognition'. A Canadian Immigration and Refugee Board research response in January 2000 also reported a distinction between leaders and followers. 15 However, the Tribunal also cited the US Department of State's International Religious Freedom Report 2002, which the Tribunal said 'suggests that the targets for such repression were widened from those groups discussed above'. 16 The Tribunal made these findings: 17 The Tribunal said: "It remains for the [appellant] to satisfy the Tribunal that all of the statutory elements are made out … the relevant facts of the individual case will have to be supplied by the [appellant] … in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the [appellant's] case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made… ." 18 The Tribunal accepted that the appellant may well be a Falun Gong practitioner, but gave weight to the DFAT country information and other information supporting it and found that she would be able to continue her practice as an individual and that this would not attract the adverse attention of the Chinese authorities. 19 The Tribunal further stated that the appellant had not provided any evidence that she has a leading role in the Falun Gong movement in Australia. Had she attended her hearing, the Tribunal would have put this to her. 20 Accordingly, the Tribunal was not satisfied, on the evidence before it, that the appellant has a well-founded fear of persecution within the meaning of the Convention and did not, therefore, satisfy the criterion set out in s.36(2) of the Act for a protection visa. 21 Further reference will be made to the Tribunal's reasons later in these reasons.

Decision of the Federal Magistrate 22 Barnes FM summarised the appellant's background and the decision of the Tribunal and then stated the appellant's claims before the Federal Magistrate that: "…the Tribunal had ignored parts of her claims in the statement attached to her application for the visa and, in doing so, had ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation, and that it had made an incorrect finding that the appellant was not entitled to a protection visa and fell into jurisdictional error." 23 However, Barnes FM held that: (i) It was apparent that the Tribunal had properly understood and considered the appellant's claims; (ii) The appellant had not specified the part of her claims said to have been ignored by the Tribunal, merely taking issue with the Tribunal's conclusions; (iii) There was nothing in the material before the court to support the claim that the Tribunal had ignored or failed to take into account relevant considerations or otherwise erred as contended; (iv) The appellant was unsuccessful before the Tribunal because of the view the Tribunal took of the facts, in particular its assessment, based on independent country information, that her claimed fears were not well founded; (v) The Tribunal's findings were open to it for the reasons it gives and the court cannot review the merits of the Tribunal's decision; (vi) In finding that the appellant would be able to continue to practise as an individual, and that there was nothing to indicate that the appellant had had a leading role in the Falun Gong movement in Australia, the Tribunal had properly considered the nature of the appellant's claims concerning her future participation in Falun Gong activities. 24 Accordingly, the application was dismissed.

The appeal to this Court 25 By her Notice of Appeal, filed 10 May 2004, the appellant claims: (i) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed. (ii) The decision involves errors of law. The appellant has not, however, filed any written submissions and made no other oral submissions at the hearing of the appeal.

The respondent's submissions 26 The respondent submits the following: (i) The appellant did not attend the hearing before the Tribunal; (ii) The Tribunal was not satisfied that the appellant's fears were well founded, as the appellant's claims that she would be mistreated, unable to find employment and unable to practise Falun Gong privately were inconsistent with independent country information before the Tribunal and with the appellant's past employment; (iii) The appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its assessment based on independent country information that her claimed fears were not well founded; (iv) It is unlikely that refugee status is to be granted to a person whose account, although plausible and coherent, is inconsistent with the tribunal's understanding of conditions in that country of nationality (citing Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J); (v) The Tribunal's findings were open for the reasons it gives, in particular the appellant's failure to attend the hearing despite being informed that the Tribunal was unable to make a favourable decision "on the papers"; (vi) The respondent respectfully adopts reasons of the Federal Magistrate; (vii) There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact; (viii) The Notice of Appeal does not identify any error in her Honour's decision.

Conclusions on the present appeal 27 It will assist if some further explication is given of the Tribunal's process of reasoning, as follows:

(a) The Tribunal's process of reasoning 28 The Tribunal noted that the practice or philosophy of Falun Gong was founded in 1992, and was developed from blending elements of Buddhist and Taoist philosophy with qigong, an ancient Chinese self-realisation and development regime. Falun Gong first came to prominence in China in April 1999 after several thousand adherents demonstrated outside the offices of the publishers of the Tianjin University journal, protesting an article criticising the movement. Another huge demonstration occurred in April 1999 outside of Beijing's leadership compound. 29 Based on independent evidence submitted regarding the country conditions and treatment of Falun Gong practitioners, the Tribunal noted that the government began its crackdown on Falun Gong in July 1999, branding the group "a threat to social and political stability". On 22 July 1999, the government banned Falun Gong and launched a massive propaganda campaign to denounce its practice and the motivation of its leaders. Subsequently, Falun Gong protests were "countered by police roundups in which thousands of practitioners were detained in police lockups and makeshift facilities for short term re-education". At the same time, a co-ordinated media campaign was launched, highlighting the alleged dangers of Falun Gong to justify the crackdown. Through the end of 1999, a legal infrastructure was implemented to prevent the practice of Falun Gong, which included the banning of CCP members, civil servants and members of the military from participating in Falun Gong activities, restrictions on legal officers representing Falun Gong practitioners, confiscation and destruction of Falun Gong publications, and attacking Falun Gong websites. 30 The Tribunal noted that by October 2000, Falun Gong members still participating in protest rallies were immediately detained instead of being sent back to their hometowns for "transformation". The Tribunal cited reports that suggested more restrictive measures were implemented during 2001, such as more severe sentences, use of psychiatric institutions to detain and re-educate Falun Gong practitioners, an increase in systematic and state-sanctioned violence against Falun Gong practitioners, an escalated propaganda campaign against Falun Gong and the utilization of state institutions, including the police and universities, to combat Falun Gong. The Chinese government reportedly also tried to prevent the international press from covering the activities of the Falun Gong movement. The Tribunal noted that, based on these measures, Falun Gong was diminished as an active and visible organization in China. The Tribunal cited reports stating that as a result, Falun Gong practitioners abroad have been demonstrating, which has led to further resistance from the Chinese government, including arrest, temporary detention and expulsion of foreign Falun Gong adherents. 31 Based on the evidence submitted regarding different treatment of Falun Gong leaders and followers, the Tribunal observed that the Chinese government mainly targeted the leaders, organizers and individuals with some degree of influence or recognition in the Falun Gong organization, citing a DFAT report of November 1999 that "… detainees who express contrition for their actions, renounce their beliefs and publicly denounce Falungong teachings are likely to be released quickly after questioning. Others have been released with a warning." Citing the DFAT report of 2001, the Tribunal noted that "official reports continue to distinguish between a small minority of 'core members' or 'diehards' who play leading roles or actively participate in illegal Falungong-related activities …" A Canadian Immigration and Refugee Board research response in January 2000 also reported a distinction between the Chinese government treatment of leaders and followers of Falun Gong. However, the Tribunal also cited the US Department of State's International Religious Freedom Report of 2002, which stated that the Chinese government "initiated a comprehensive effort to round up practitioners not already in custody in an effort to force them to renounce Falun Gong". This included practitioners that had not protested or made other public demonstrations, and these individuals were forced to attend Falun Gong study sessions to recant their beliefs, or else be sent to re-education through labour camps where beatings and torture were employed to prompt recantation. 32 The Tribunal noted that the appellant became a Falun Gong practitioner for health reasons and was targeted by the Chinese government after it began its crackdown on the Falun Gong. Her supervisor at her job attempted to dissuade her from practicing Falun Gong and reported her to the police when she refused to listen. The appellant was later detained and mistreated when she was mistaken for a Falun Gong leader in her work group but was released when the authorities could not substantiate her association with the Falun Gong. The appellant was sacked because of her religious beliefs and because many of her fellow co-practitioners had similar experiences, and fearing for her life, the appellant decided to flee China. The appellant, in response to country information regarding the treatment of Falun Gong adherents and concerns raised about her credibility, claimed that "whoever practices Falun Gong, no matter secretly or publicly, will definitely be jailed as soon as the practice is known to the relevant authorities". 33 The Tribunal noted that the appellant must satisfy the genuineness of the asserted well-founded fear of persecution and that it was not for the Tribunal to either make the appellant's case or uncritically accept all the appellant's allegations. While accepting that the appellant was a Falun Gong practitioner, the Tribunal found that the appellant would still be able to continue to practise Falun Gong in China as an individual without attracting "the adverse attention of the PRC authorities". The Tribunal noted that the appellant was released from detention after the Chinese authorities could not find any evidence of her association with the Falun Gong, and she was later issued a passport after her detention and departed China legally. The Tribunal found that the appellant did not provide any evidence that she had a leading role in the Falun Gong movement in Australia, and because she did not attend the hearing, was not able to be asked about further involvement in Falun Gong. Thus, the Tribunal did not have any evidence to conclude that the appellant would be unable to find work in China based on her record of successful employment, and there was no evidence that the appellant had successfully demonstrated a well-founded fear of persecution as defined by s 36(2) of the Convention for a protection visa.

(b) Conclusions on the grounds of appeal 34 As will have been seen, these grounds are abstractly expressed, with no supporting detail. Moreover, an examination of the Tribunal's reasoning fails to support any of the claims made in either of these grounds of appeal. In the circumstances, I agree with the respondent's submissions that the appeal is without any substance. 35 The appeal must be dismissed, with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Respondent: Australian Government Solicitor

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