FEDERAL COURT OF AUSTRALIA Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1671 MIGRATION – appeal from the decision of a single Judge affirming the decision of the Refugee Review Tribunal to refuse the appellant a Protection (Class XA) visa – respondent acknowledged for purposes of appeal that s 425(1) of the Migration Act 1958 (Cth) entitled appellant to an opportunity to give evidence and to present arguments to Tribunal – whether the trial Judge erred in finding that the appellant had been afforded a proper hearing – whether the trial Judge was correct in holding that the hearing was meaningful and genuine and non-perfunctory Migration Act 1958 (Cth) ss 425, 476(1)(a), (b), (c) Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 763 affirmed Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 considered Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288 referred to Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 referred to Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 referred to De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 referred to Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 referred to Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578 referred to Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 referred to Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 applied Abebe v Commonwealth of Australia (1999) 197 CLR 510 applied DE RONG CHEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1065 OF 2001 LINDGREN, TAMBERLIN AND MANSFIELD JJ 3 DECEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1065 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DE RONG CHEN APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: LINDGREN, TAMBERLIN, AND MANSFIELD JJ DATE OF ORDER: 3 DECEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1065 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DE RONG CHEN APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: LINDGREN, TAMBERLIN AND MANSFIELD JJ DATE: 3 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: introduction and claims 1 This is an appeal from a decision of Moore J given on 22 June 2001: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 763 His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 9 December 2000, which in turn affirmed a decision of a delegate of the respondent of 12 February 2000 to refuse to grant to the appellant a Protection Visa (Class XA) under the Migration Act 1958 (Cth) (the Act). The appellant had arrived in Australia on 5 October 1999 travelling on a false passport, and subsequently on 8 February 2000 he applied for that visa. 2 The relevant criterion for the grant of the visa is that the appellant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Convention): see s 36(2) of the Act. In a practical sense, that required the delegate of the respondent, and on review the Tribunal, to be satisfied that the appellant was a refugee as defined in Article 1A(2) of the Convention. 3 The appellant is a 28 year old man from the Fujian province of China. He became a practitioner of Falun Gong in April 1999, and claimed that until his departure from China in mid September 1999 he was an active participant who introduced the practice of Falun Gong to "more than 300 people". He claimed to be known to the authorities and to have been placed on a "black list" as a result of the high profile he had achieved in his home town due to his Falun Gong activities. He further claimed that, prior to his departure from China on 1 October 1999, the Public Security Bureau had undertaken raids on Falun Gong practitioners in his area, that he had managed to avoid being detained, and that he fled China believing a warrant had been issued for his arrest. THE TRIBUNAL'S REASONS 4 The Tribunal spent a considerable part of its reasons for decision reviewing the background and history of the Falun Gong movement. That movement, as the learned Judge at first instance noted, was established in 1992 by Li Hongzhi. It is not necessary to explore its beliefs in these reasons. In 1994, its founder left China with the aim of promoting Falun Gong in other countries. It had by then developed substantial popularity. In Beijing on 25 April 1999 Falun Gong members staged a protest outside the Zhong Nan Hia, "the compound that houses the offices and accommodation of the Chinese leadership" in Beijing, demanding the authorities investigate the handling of a protest which had been staged in Tianjin some time beforehand. It was a substantial protest. It appears that, at least in part because of that protest, Falun Gong was seen by the government as a threat to security and as a dangerous movement. In June 1999, the government warned Falun Gong against disturbing social stability and banned it from holding large public gatherings. On 22 July 1999, the government formally banned Falun Gong, accusing it of corrupting people's minds, subverting national stability, being anti-science and seeking to replace the government. Thereafter, as the Tribunal noted, there were extensive reports of many Falun Gong practitioners being detained inappropriately. Independent country information available to the Tribunal indicated, however, that private practice of Falun Gong on an individual basis would be unlikely to attract attention, but public profession of allegiance to Falun Gong or participation in group activities would be likely to lead to questioning by the authorities. 5 The Tribunal concluded: "The Tribunal finds that the applicant has only a relatively minor interest in Falun Gong practice. This finding is based on his evidence that he only occasionally practises Falun Gong. In addition the Tribunal finds that the Chinese authorities would not be interested in the applicant. Country information shows that the authorities have been targeting those who are organisers of Falun Gong groups, and organising protests. The Tribunal does not accept that the applicant was an organiser, nor that he was responsible for recruiting hundreds of people, nor that he was on a black list, nor that there was a warrant for his arrest, nor that he had been involved in any protests. The Tribunal makes these findings based on the country information and the applicant's own evidence that he very rarely practices Falun Gong with others and even when in China had practised in public in a park only occasionally. This is not consistent with a claim that he was an organiser, the police were looking for him, or that he recruited others." Consequently, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his religion. It was prepared, although with some hesitation, to accept that he was a member of Falun Gong. But the Tribunal concluded that the way in which he would practise Falun Gong if he were to return to China involved only occasional practice. It therefore was not satisfied that he would be of interest to the Chinese authorities, and thought any fear that he may have of persecution by them was not well-founded. THE DECISION OF MOORE J 6 At the hearing of his application for judicial review, the appellant was not represented. 7 The learned Judge at first instance, in an endeavour to identify what points the appellant might make on that application, discerned that he was complaining that he had not been given a proper hearing by the Tribunal. He had been notified that the Tribunal would provide him with a hearing in relation to his claim at 10.15 am on 6 December 2000. He attended at that time but the hearing did not then commence. It commenced at 4.45 pm that day and completed at 5.08 pm that day. It appears that the delay was because the appellant had not, as requested by the Tribunal, completed and returned to it the Tribunal's standard "Response to Hearing Invitation" form advising that he wished to come to the hearing, and so no arrangements had been made for an interpreter to be available to assist him at the hearing. Material indicates that the interpreter became available on the hearing day only late in the afternoon. 8 The Tribunal did not expressly refer to the hearing in its reasons for decision. Nor did it expressly identify any evidence given by the appellant to the Tribunal on that occasion. Moore J adjourned the hearing of the application for judicial review to discern what had transpired at the hearing. A transcript of the hearing was made available. Having had the opportunity to examine the course of the hearing, his Honour described the course of the hearing before the Tribunal as being "unexceptionable". The Tribunal had asked questions of the appellant about the matters on which his claim was based. At the end of that process, it had asked him whether he had any more information that he wished to give to the Tribunal. Moore J was not satisfied that the appellant had not been given a hearing. His Honour said that he did not accept that the Tribunal did not undertake as extensive an inquiry as was justified in the circumstances. He concluded (at [14]): "It appears to me that the factual foundation of the contention of the applicant that there was no hearing is not made out. Accordingly it is unnecessary to embark upon a consideration of what the Act requires of the Tribunal, if anything, in conducting a hearing and to what extent, if at all, the manner in which a hearing is conducted is amenable to judicial review: see, for example, the discussion by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472." It may be added that the Tribunal clearly did have regard to the evidence given by the appellant to the Tribunal on 6 December 2000. The only information provided by the appellant to the Tribunal was that contained in his initial application for the visa and that provided at the hearing on 6 December 2000. Although both the initial application for the visa and the application for review made to the Tribunal on 16 March 2000 each stated that detailed statements in support of the appellant's claim would be provided, no such statements were in fact provided. The Tribunal accepted the appellant's evidence that he now practises Falun Gong only occasionally, that he very rarely practises it with others, and that even when in China he had practised Falun Gong in public in a park with others only occasionally. The source of that information is what the appellant told the Tribunal at the hearing on 6 December 2000. THE GROUNDS OF APPEAL 9 The amended notice of appeal before the Court contained the following grounds: "1. The trial judge was in error in holding that the hearing before the Tribunal was 'unexceptional' and in failing to hold that the Appellant was not afforded such a hearing as is contemplated by the Act. 2. The trial judge was in error in failing to hold that procedures required by the Act to be observed in connection with the making of the Tribunal's decision – namely a hearing as referred to in s 425(1) – were not observed. 3. The trial judge was in error in failing to hold that the Tribunal did not have jurisdiction to make the decision, it not having conducted such an oral hearing as was required by the Act, as a precondition to its decisions. 4. The trial judge was in error in failing to hold that the decision of the Tribunal was not authorised by the Act in circumstances where it had not afforded the Appellant such a hearing as was contemplated by s 425(1). 5. The trial judge was in error in failing to hold that the decision of the Tribunal involved an error of law being an error involving an incorrect interpretation of s 425 or alternatively an incorrect application of s 425 to the facts of the case." In the helpful submissions of senior counsel for the appellant, it was made clear that those grounds were really aspects of the one complaint: that the appellant had not been afforded the hearing to which Part 7 Div 4 of the Act, and in particular s 425, entitled him. It was put that the hearing provided in this case by the Tribunal was not in truth a hearing at all, so that procedures required by the Act were not observed. It was further contended that such a hearing in the circumstances was a pre-condition of the Tribunal's making a valid decision, so that it did not have jurisdiction to make the decision which it made and the decision was not authorised by the Act. Thus, it was sought to invoke the grounds of review available under s 476(1)(a), (b), and (c) of the Act. 10 The contentions advanced on behalf of the appellant contained three essential propositions, namely: 1. In the particular circumstances, the Tribunal was obliged to provide to the appellant an oral hearing with the opportunity to give evidence and present arguments in relation to his claims before it could make a decision under s 415 of the Act adverse to him. 2. The hearing to be provided must be "meaningful and genuine and not perfunctory". 3. The requirement for a meaningful and genuine and non-perfunctory hearing was not observed in this case. CONSIDERATION 11 Section 425 of the Act, as currently expressed, is in the following terms: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." That provision was inserted by Sch 3 to the Migration Legislation Amendment Act 1998 (No.1) (Cth), effective from 1 July 1999. Section 425 previously provided: "425(1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review." 12 In Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315, Tamberlin and Katz JJ discussed (at 322 – 326) the nature of the "opportunity to appear … to give evidence", referred to in s 425(1) in its previous form. Their Honours pointed out that the determination of the extent of the obligation imposed upon the Tribunal is essentially one of statutory construction. It was submitted in that case that the Tribunal must provide a "genuine" opportunity to give evidence and disclose material and views which the Tribunal may consider to be adverse to the visa applicant. Their Honours said (at 323): "According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence. It should also be noted that the above quoted observations of Lindgren J [a reference to observations made in Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lindgren J, 6 May 1997)] support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a "procedure" within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not." Their review of recent decisions concerning the then s 425(1)(a) led their Honours to observe that the content and extent of the statutory obligation to give a visa applicant an opportunity to appear and give evidence was narrower than the general law principles of natural justice would normally require. Their Honours referred (at [37]) with apparent approval to the following passage from the decision of the Full Court in Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288 at [38]: "It is not the function of the Tribunal to 'lead' a visa applicant to assert a Convention-related fear of persecution when, without that direction, the visa applicant has been given the opportunity to explain the reasons for the fear of persecution without being led to a particular answer." Sackville J at [64] – [71] had expressed similar views. 13 The appellant's first contention was that (where it applies: see s 425(2)) s 425(1) as now in force equally imposes an obligation upon the Tribunal to give a visa applicant the opportunity to give evidence, and the added obligation to give the visa applicant the opportunity to present arguments, in support of the claim for a protection visa. It was put that the obligation to give these opportunities is necessarily implied by the need to make the invitation for which s 425(1) now provides meaningful. The appellant's counsel acknowledged, however, that there were decisions of the Court which point to a contrary conclusion: see Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434; [2000] FCA 1275 per Branson J at [43], although Burchett J in that case at [10] appears to have taken the view for which the appellant contends; and Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 per Wilcox J at [35]. To those references of decisions adverse to the appellant's first proposition, counsel for the respondent added references to De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364; Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 – 219 per Whitlam, Tamberlin and Sackville JJ; Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578 at 590 – 591 per Beaumont J; and Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 (Algama) at [56]–[69] per North J. 14 It is not necessary in the present case to determine whether s 425(1), where it applies, imposes upon the Tribunal an obligation to give to an applicant for a protection visa an opportunity to give evidence and to present arguments to the Tribunal. Nor is it necessary to review the authorities said to be relevant to this issue to which the Court was referred (North J in Algama undertook that task at [56]–[69]). The reason is that for the purposes of this appeal, the respondent was prepared to acknowledge that s 425(1) did impose upon the Tribunal the obligation to give to the appellant the opportunity to give evidence and to present arguments. The first of the appellant's three propositions referred to at [10] above was therefore not in issue. 15 The respondent confined his submissions to the second and third of the propositions put by the appellant. His counsel argued that even if the extent of the acknowledged obligation was co-extensive with that which existed under the former s 425(1)(a), and allowing additionally that the obligation now includes the need to give the appellant the opportunity to present argument, the obligation was satisfied in this case. 16 In this matter, it is not necessary to address in detail the nature and extent of the acknowledged obligation. That is because, in our opinion, the hearing which the Tribunal afforded the appellant on 6 December 2000 was one which satisfied that obligation, however it may be identified by reference to earlier decisions. The appellant was invited to attend, and did attend, a hearing conducted by the Tribunal. He was provided with the assistance of an interpreter. He had, prior to the hearing, provided no information to the Tribunal, other than the brief statement in his application for the visa stating why he feared mistreatment if he were to return to China. The appellant must have known that the written evidence and submissions to the Tribunal were insufficient to convince it that his claim was well-founded, and that his case required some further support or elaboration. He had the benefit of knowing the reasons why the delegate of the respondent had refused his application for the visa. At the hearing he was asked to tell the Tribunal why he feared returning to China. He was asked to explain about Falun Gong, and the extent of his practice of Falun Gong. He was asked about any problems he had experienced in China because of his membership of Falun Gong. He was asked whether he had been involved in China in any demonstrations about Falun Gong. He was asked about when and why he left China. He was asked about his practice of Falun Gong since he had been in Australia. The Tribunal invited him to comment upon information which it had obtained from independent material about Falun Gong to the effect that, in China, people are free to practise Falun Gong in private. At the end of the hearing, the appellant was asked whether there was any further information which he wanted to provide to the presiding Member, to which he replied "No". 17 The course of the hearing, as set out, does not indicate that the Tribunal gave to the appellant such a perfunctory hearing that it was not a "genuine" hearing at all. The Tribunal rejected the appellant's claims of extensive involvement with the Falun Gong in China largely upon the basis of answers which the appellant himself gave to the Tribunal. It explored the foundation of his claim to have been the subject of an arrest warrant. During the hearing the Tribunal indicated that it was aware of the appellant's having been present at the premises of the Tribunal for a long period before the hearing took place. It did not seek to curtail the appellant's answers to its questions, or to curtail his response to its invitation to provide any further information. 18 On some issues the questioning may be viewed as having been short, and supplementary questions could have been asked. But the Tribunal did not indicate to the appellant in any way that the time available for his hearing was limited. The appellant claimed before Moore J that he understood that the building was to be closed at 5.00 pm, so that he was very confined in answering the Tribunal. There is nothing in the transcript of the hearing, however, indicating that the Tribunal suggested that the hearing had to be finished by a particular time, or that it was to be a short hearing only, or that he should restrict himself in the way he answered questions or provided oral information or presented argument to the Tribunal. 19 In Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 at [31] a Full Court described the obligation imposed on the Tribunal under the previous s 425(1) as being to give "a fair system of administrative merits review". Accepting that criterion to be applicable to the hearing provided to the appellant in this matter on 6 December 2000, we do not consider that Moore J erred in concluding that that obligation had been satisfied. The hearing is not shown to have been other than "meaningful and genuine and non-perfunctory". It is not the obligation of the Tribunal to put to the appellant all matters which might be expected to be put by a contradictor in adversarial proceedings. The position of the Tribunal is explained by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] in the following terms: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out." Section 424A(1) separately imposes upon the Tribunal the obligation to give to a visa applicant particulars of certain information which it considers would be the reason, or part of the reason, for affirming the decision that is under review and to invite the visa applicant to comment upon it. It is not suggested that that section came into play in relation to the Tribunal's consideration of the appellant's claim. conclusion 20 For these reasons, the appeal should be dismissed. The appellant should pay the respondent's costs of the appeal. 21 [After the above paragraphs were written, we became aware of the Full Court judgment in Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 which was delivered after the hearing of this appeal. In that case the Full Court expressed the view (at [44]-[47]) that s 425(1), where it applies, gives substantive rights, and not merely a formal right to be invited. This does not affect our reasoning or decision.] I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, Tamberlin and Mansfield. Associate: Dated: 3 December 2001 Counsel for the Appellant: Mr P Brereton SC and Mr S A Benson Solicitors for the Appellant: Christopher Levingston & Associates Counsel for the Respondent: Mr T Reilly Solicitors for the Respondent: Sparke Helmore Date of Hearing: 14 November 2001 Date of Judgment: 3 December 2001