NAXW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 644 | Case summary

The RRT decision 3 The RRT accepted that the appellant was a Falun Gong adherent and that he was involved in running a training centre with his wife. It accepted that his wife was involved in protests in 1999, and that she was detention in July 1999 for fifteen days. 4 The RRT concluded that the appellant was a low-level Falun Gong adherent, but did not accept a number of his other claims. In particular, the RRT did not accept that the applicant's wife was involved in underground activities in 2000. Nor did it accept that the appellant had been identified as a supporter of her activities. 5 The RRT was not satisfied that the money that the applicant sent to China was for Falun Gong purposes. The RRT also found, relying upon evidence from a documentary examination unit, that documents purporting to prove the arrest and detention of the applicant's wife's were false, and that a document purporting to come from a mental hospital was fraudulent. 6 The RRT noted that some aspects of the applicant's claims regarding his wife's arrest were not made until the RRT hearing, or at least at a late stage. In addition, the RRT referred to assertions that the applicant made in his claim regarding his intention to return to China in May 1999, before the action against his wife had been taken. 7 In relation to the statements regarding his intended return to China, a factor to which the RRT attached considerable importance, the member said: "I also note that the applicant contradicted himself on two significant claims in his hearing evidence. I asked why he claimed that his wife's involvement in the April 1999 Zhongnanhai protest prevented him from returning to China in May 1999, given that the first repercussions against her were in June. First he replied that it was not in May but July 1999 that Falun Gong was outlawed and his wife was arrested and the PSB [Public Security Bureau of Yantai City] got to know about him. Apart from the fact that this does not answer my question, I note that according to his other evidence the PSB got to know about him in May 2000, not July 1999 which was when his wife was merely detained for 15 days. However, when I posed the question again, he gave a new answer: that in fact he wanted to return to China not in May 1999 but in May 2000. In view of the contradictions and inconsistencies in these two explanations, I do not accept either of them. The applicant contradicted himself a second time when I asked him how he knew he was on a PSB black list. First he said it was because his and his wife's teaching centre was the largest in their city and they were often invited by the media, and he would therefore have been noticed by the PSB even before the crackdown. When I posed the question again he said he heard the news from his friend in the PSB. Based on the unexplained contradiction and my earlier credibility findings, I do not accept either explanation and do not accept that the applicant is on a PSB black list."

FEDERAL COURT HEARING AND REASONING 8 When the matter came on for hearing before me on 10 March 2004, counsel for the respondent informed me that I did not have a full set of the record because the departmental file could not be located. It has been misplaced and was still not available as at 10 May 2004 when the further hearing took place before me. 9 At the hearing on 10 March, the applicant sought to tender two tapes, which he said supported his case. The first was a record of a departmental interview, and the second was a record of the hearing before the RRT. The applicant claimed that the tapes assisted his case in that they established that he had maintained a position consistent with his latest evidence from an earlier time, because he had indicated prior to the RRT hearing that he had intended to return to China in May 2000, and that it was incorrect to say that he intended to return in May 1999. He accepted that he had stated at one point in his application that his intention to return was in fact in May 1999, but he said that this was an erroneous answer given by his migration agent, and that he did not become aware of its inaccuracy until considerably later. 10 In light of the fact the RRT had attached importance to the apparent contradiction in the applicant's evidence concerning the dates of his intended return to China, and also because the departmental file was missing, after hearing argument on the matter, I adjourned the proceedings on 10 March 2004 to 10 May 2004, to enable transcripts of the two tapes to be obtained. These have been provided to me and I have examined them. 11 It is not clear whether the record of interview with the delegate was in fact in evidence before the RRT. 12 To some extent the transcripts support the applicant's assertion that he had referred to May 2000 in earlier statements, and that it was not a recent invention. For example, in the interview with the delegate which took place in 2000 he said: "I was intended [sic] to go back to China in May this year …" 13 According to the transcript of the hearing before the RRT, the applicant's evidence was inconsistent. At two places early in the transcript, the applicant agreed that he was supposed to return to China in May 1999, but could not do so because his wife got into trouble as a consequence of a protest in Zhongnanhai. Subsequently, the transcript records the applicant saying that it was in May 2000 and not May 1999 that he wanted to go back. However, he agreed that May 1999 was the date specified in his application form as a consequence of the error made by his migration agent. 14 My conclusion in relation to this material is that although there was some material to support the applicant's assertion that he had earlier referred to May 2000 as the correct date in respect of his intended return, there were inconsistencies in his evidence with the consequence that it was open to the RRT to rely on these contradictions as one of the factors which justified the rejection of his evidence. I can find no reviewable error on the part of the RRT in relation to this consideration. 15 The applicant has raised eight matters in his amended application in an attempt to make good his claims that the RRT erred in reaching its conclusions, and that it exceeded its jurisdiction. I will deal with each in turn: (i) The application for a Protection visa made to the respondent by the applicant was rejected by a decision of the delegate of the respondent on 28.6.01. The applicant sought review by the Tribunal. On 4.9.02 the Tribunal made a decision to affirm the decision of the respondent. That decision was infested with error and consequently the Tribunal acted contrary to law, resulting in a constructive failure to exercise jurisdiction. This is an assertion and not a ground of review. (ii) The Tribunal failed to accord procedural fairness to the applicant as the Tribunal did not give the applicant the opportunity to address country material which was unfavourable to him and which the Tribunal took into consideration. This ground is not made out. The country information relied on by the RRT is non-specific to the applicant, largely sets out details of the Falun Gong movement and its structure, beliefs and operations, and is primarily supportive of the applicant's contentions. There is no general obligation to put country information to an applicant. In this case the material relevantly stated, among other things, that a leadership or organisational role in Falun Gong was the factor which attracted persecution. However, the applicant conducted his case on the basis that he was a prominent member in the Falun Gong movement and this was rejected. (iii) The Tribunal made a finding that the applicant was not a credible witness as he first brought up certain claims at the Tribunal hearing. These claims however had been raised with Immigration and consequently the finding of the Tribunal was not open to the Tribunal on the facts before it. This is a question of pure fact and there is no evidence adduced by the applicant to support the assertion. The RRT noted that the applicant had sought to "explain" why material had not been referred to at an earlier stage. It is not a case of him denying that the material had been raised at a late stage. This indicates to some extent that the applicant accepted that the material was raised at a late stage. (iv) The Tribunal made a finding that the applicant was not a credible witness as he stated that he planned to return to China in May 1999. The applicant made no such statement and consequently the finding was not open to the Tribunal on the facts before it. This has been dealt with above: see [7] - [14]. (v) The Tribunal failed to take into account the evidence comprised in the photographs of the applicant participating in Falun Gong activities. The RRT referred to the applicant's submissions in relation to these photographs. It is not bound to deal with every piece of evidence. Moreover, the photographs must be read in the context of the evidence as a whole, and they do not of themselves support any particular inference which the RRT was obliged to draw. (vi) The Tribunal failed to accord procedural fairness to the applicant as the Tribunal did not take adequate steps to satisfy itself of the authenticity of the applicant's documents. The RRT is under no duty to make inquiries as to authenticity, save in exceptional circumstances. Such circumstances are not present in this case. The RRT gave reasons for its rejection of the documents, namely the evidence of the document examination unit and the nature of the documents themselves, when considered in the light of both the surrounding circumstances and other evidence, including country information. (vii) The Tribunal failed to take into account the relevant consideration of the variances in the Falun Gong exercises performed by the applicant as a result of age, flexibility or level of skill. This ground challenges the foundation for an important factual finding that the RRT made on the basis of its observation of the applicant's performance of five Falun Gong exercises. The RRT noted that the applicant only performed three without an error, and that the performance of two of the movements were in error. In this respect the RRT said: "I asked him a number of questions to test his knowledge of the history and principles of Falun Gong, drawing on the information and detailed illustrations of exercises contained in one of the main Falun Dafa websites (Falun Gong Practice System, www.falundafa.org/book/eng/flg_4htm). I am satisfied that his answers demonstrated what I would consider an adequate knowledge for a Falun Gong practitioner. I also asked him to demonstrate and name the five main exercises. He named all five correctly. However, he demonstrated only the first three correctly, the last two were only partly accurate." (Emphasis added) The member does not say in what respects they were perceived to be inaccurate but went on to conclude as follows: "I accept that he was a Falun Gong adherent. I am prepared to accept that his wife set up a training centre in Yantai. I accept that the applicant did exercises there and was involved in low-level organisational activities at the centre. I am unable to be satisfied that he was a teacher there, given his imperfect knowledge of some of the main Falun Gong exercises. I do not accept the claim in his protection visa application that he was 'deeply involved in the organisation and activities of Falun Gong.' I find that he was not prominent in the movement, but was a low-level Falun Gong adherent. In any case, I note that he left China in 1998, almost a year before the government's anti-Falun Gong crackdown." The transcript relating to these exercises reads as follows: MR GACS: All right. I'll ask you now to show me the main Falun Gong exercises and could you name them please? THE INTERPRETER: Which part? Do you want me to start right from the first? MR GACS: Yes, please. Can you tell me what the first one - firstly, how many are there? THE INTERPRETER: Five sets all together. So, the first one is Buddha extending hand. Can I start doing it? MR GACS: Yes. THE INTERPRETER: That's the first one. So, I have to explain to you I basically have to speed up the actual exercise. MR GACS: Yes, I understand. THE INTERPRETER: So, in reality, when I do practise it, it's done in a very slow way. Mr GACS: Yes, I appreciate that. Yes, I just wanted to see the main movements, the timing doesn't matter so much. THE INTERPRETER: The second one? MR GACS: Yes. THE INTERPRETER: The standing stance of Falun. So, that's the end of the second one. MR GACS: Yes. THE INTERPRETER: The third one? MR GACS: Yes. THE INTERPRETER: Penetrating the two cosmic extremes. Start. So that's the end of it. So, when you stretch upward and downward to reach the two extremes, you have to do it nine times. MR GACS: Okay. For the others, there's no need to repeat the movements, if you just do each movement once. Okay? THE INTERPRETER: So, the heavenly circle is the fourth one. Also you have to repeat it nine times. I only did it twice. MR GACS: Okay. THE INTERPRETER: So, the Falun is strengthening the power. That's the fifth one. MR GACS: Are you all right? Thank you. Please sit down. Can you outline for me your Falun Gong activities in Australia? …" It can be seen from this exchange that the member gave no indication of any error or omission but rather made reassuring statements which could reasonably be taken as an acceptance of the satisfactory performance of the exercises. The finding that the applicant was not a teacher was central to the reasoning of the RRT because the inference drawn was that he was not "deeply involved" in Falun Gong and that therefore he was not prominent. This in turn led to the conclusion, and tied in with the country information to the effect that the criterion for selecting individuals for persecution was the degree of involvement of the person in leadership or organisational roles in the Falun Gong movement. The RRT member, although indicating to the applicant that he was testing the applicant's knowledge of the history, principles and purposes of Falun Gong, did not refer the applicant to the consideration that he had made an error in respect of the two movements, which were said to be only partly accurate. This failure to be fully accurate in the performance of the Falun Gong exercises was not pointed out to the applicant, nor was he given any opportunity to explain the alleged defects. The applicant was not shown the material on the website that the member used as a reference. He was not given any opportunity to challenge its authenticity or relevance. The two claimed partial errors, which were ascertained by a person who could not claim to be an expert in the nuances of Falun Gong movements, led the RRT member to the conclusion that the applicant was not sufficiently prominent in the movement to attract persecution. In my view, the failure of the RRT member, who was inexpert in Falun Gong, to raise the alleged partial errors with the applicant, and to seek an explanation, was an important failure that amounted to a failure to provide procedural fairness to the applicant on a central issue in the proceeding. Further, this failure to afford basic procedural fairness amounted to jurisdictional error, with the consequence that the RRT decision should be set aside. (viii) As the purported decision of the Tribunal was infected with error, the Tribunal did not have the jurisdiction to make such a decision. Consequently the purported decision was not a 'decision' for the purposes of the definition of a 'privative clause decision' under s 474 of the Migration Act 1958 and [was] therefore not such a privative clause decision. The final matter raised as a basis for review is simply a submission that the decision is infected with error which is not protected by s 474 of the Migration Act 1958. I accept this submission for the reason given above in relation to ground (vii). 16 My conclusion is that the application for review is granted. The RRT decision is set aside. The matter is remitted to the RRT for decision in accordance with law. The respondent is to pay the costs of the applicant on this application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

NAXW v Minister for Immigration and Multicultural and Indigenous Affairs

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