VAAW v Minister for Immigration & Multicultural Affairs [ 2002] FCA 1245

FEDERAL COURT OF AUSTRALIA

VAAW v Minister for Immigration & Multicultural Affairs [2002] FCA 1245 APPLICANT VAAW OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1053 OF 2001 NORTH J 10 OCTOBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1053 OF 2001

BETWEEN: VAAW OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 10 OCTOBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of and incidental to the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1053 OF 2001

BETWEEN: VAAW OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 10 OCTOBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 14 September 2001. The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant a protection visa.

background 2 The applicant is a Chinese national. The essential elements of his background and claims taken from the decision of the Tribunal and relevant to this application are as follows. 3 The applicant was born in Shanghai in 1952. He worked as a carpenter between 1980 and 1990. From 1990 to 1996 he was a partner in a nail manufacturing business. 4 He claimed that he became involved in the Falun Gong organisation in 1994 and was elected as a responsible person for the Zabei district in October 1995. 5 In China he practised Falun Gong with a group in the Jaiotong Garden. He was a responsible person. The group was about forty when he started and 200 when he left China. The applicant gave evidence to the Tribunal that when he was in the group in China it did not have a formal office. 6 The applicant arrived in Australia on 4 November 1996. He claimed that he found out that a Falun Gong association existed in Melbourne in March 1997 so he joined. The group practised each Sunday in the Flagstaff Gardens and discussed the Chinese situation and the Communist Party. 7 In about April 1999, there was a crackdown in China against the practice of Falun Gong. The applicant learned of this event shortly after it occurred. 8 Then in June 2000, he claimed to have heard from his wife who remained in China that a summons had been delivered requiring him to attend court. He thought that this was about his involvement with Falun Gong. 9 On 25 May 2000, the applicant was detained as an unlawful immigrant. At first he indicated that he wanted to return home and would do so voluntarily. A date for departure was fixed for 7 July 2000. On 4 July 2000, he refused to sign a notice of removal and made an application for a protection visa. 10 On 11 October 2000, the applicant's advisors sent to the Tribunal a copy and translation of a letter from persons purporting to be friends of the applicant who belonged to the Falun Gong group which practised in Jiaotong Garden. The letter stated: "Your Worship the Judge, lawyer, Greetings to you! First of all, under the principle of not breaching the teaching of Falun Dafa, we would like to describe to you the situation when … [the applicant] worked at our station and the current situation regarding the attacks on Falun Gong in China. [The applicant] … started his practice of Falun Dafa in the summer of 1994. Because of his active participation in the practice, his enthusiasm and strong organising ability, he took the position of a vice director for our station from October 1995, responsible for the work of organising and external liaison for the station. In one role, he was leading in practice, at the same time, he was making arrangements regarding activities with other stations. He was also responsible for meeting arrangements and for venues to hold activities. Sometimes, he had to make contacts and gain an understanding of what was happening in other cities regarding the practice. If there were good experiences and effects from practising, he would actively invite those people to our station to demonstrate in person. The venue where our station practised Falun Gong was inside Jiaotong Park, Zhabei District, in the City of Shanghai, with more than 300 people in attendance, of whom there were workers, teachers, retirees, and some were university professors. It was wonderful that every one of us was practising together. Because the work we did in our station was very good, in the last couple of years over 30 people went to Beijing, Dalian and other cities to exchange their experiences. We often said: 'How wonderful it would have been if … [the applicant] were still here.' However the situation changed. The Chinese Government claimed that Falun Gong was heresy. Newspapers are publishing articles vilifying Falun Dafa. Many people have been secretly arrested. Many of them have been tortured illegally in prisons and there is no food for them to eat. The office of our station has long been closed down and possessions confiscated. All of the stationery, utensils, tapes and books were taken away. Some practitioners have left and some have surrendered to the government. But most of us have infinite faith in our beliefs, and practise privately. Two persons-in-charge (director and vice director) of the station have mysteriously disappeared (secretly arrested), and their wives were forced by their work units to leave their jobs. Their children are discriminated against by their peers and teachers at school. The CIB division of the Public Security Bureau went to … [the applicant's] home to check whether he was in. A court has also subpoenaed him to defend himself against accusations. It seems that … [the applicant] is in great danger. We should say that he will be arrested as soon as he returns to China now, because there was someone else whose situation was similar to his, who was acting as a vice director in the District of Huangpu, who was arrested at the customs office when he was trying to leave the country. We believe that Australia is a country of freedom and freedom of religious beliefs, so we urge him definitely not to return to China because the Chinese Government is blindly carrying out arrests and suppression. We, as Falun Gong practitioners, also believe that the Australian Government will help someone whose religious belief has been deprived and who has been persecuted. Signatures of some members Falun Dafa Instruction Station Jiaotong Park Zhabei District 2nd September 2000 (signatures attached hereto)" [emphasis added] 11 Having set out the background just related, the Tribunal referred to certain country information on a number of subjects raised by the application. On the subject of the issue of summonses in China the Tribunal referred to the form of the summons in evidence, and the ready availability of forgeries and of documents procured by bribery. 12 On the subject of Falun Gong the Tribunal said in part at 8-9: "According to a letter to the Tribunal from Holly Wei (a Falun Gong contact person in Australia) dated 19 Jan 2000 'We are a very loose organisation, with no office, no bank account, no membership or membership fees, and we do not accept donations, either.' For the UK Immigration and Nationality Directorate, the UK Falun Gong Association answered the question whether the Falun Gong inside China was organised differently from outside; e.g. were there membership cards. The answer came as follows: 'I would say that the practice outside China is modelled on that in China, as practitioner[s] who learned Falun Gong in China travelled to other countries to study, work or live and brought it with them. I am not aware of any membership cards, register or hierarchy structure.'" [emphasis added] 13 The Tribunal then cited reports which concluded that practitioners of Falun Gong were harshly treated by the Chinese authorities.