NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99

FEDERAL COURT OF AUSTRALIA

NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99

MIGRATION – application for judicial review – denial of procedural fairness – independent country information not supplied – Tribunal gave opportunity to comment on substance of information – Tribunal failed to record evidence accurately – errors were limited in scope – test for breach of natural justice not satisfied – application dismissed. Migration Act 1958 (Cth) Kioa v West (1985) 159 CLR 550 cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited R v Milk Board ex parte Tompkins [1944] VLR 187 cited Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 cited NAVM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1195 OF 2003 BEAUMONT J 6 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1195 OF 2003

BETWEEN: NAVM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 6 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed, with costs. 2. The time for filing any appellate process shall not commence to run until 20 February 2004.

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 1195 OF 2003

BETWEEN: NAVM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 6 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

Introduction 1 This is an application for judicial review, on the grounds of denial of procedural fairness, of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of the respondent Minister's delegate refusing to grant the applicant, a Chinese national, a Protection (Class XA) Visa. 2 In support of his review application made to the Tribunal, the applicant's solicitors, by letter dated 17 April 2003, stated (par 2) that his claim 'is based on the fact that he is a practitioner of Falun Gong who is wanted by Chinese authorities for his dedication to its practices'. 3 In the applicant's declaration statement (Attachment A to the letter), the applicant said that he had been a Falun Gong member since 1997 and stated (inter alia): '... It was about midnight 30th April 2001 when I heard somebody knocking on my door. I was so nervous for fear of being arrested by the policeman like Jingguiqing. Fortunately it was her cousin when I answered the door. As a messenger, he looked panicky too and urging to leave China as soon as possible with the help of Lichunye, [who] ... worked for travel. I was also told to burn the name lists, books and logos of all the Falungong practisers and try to inform all the rest of the practisers. I did as told right away that night and told Lichunye everything about myself the following day. She placed a phone call to a policeman and asked him to help me travel abroad. Later, with the help of other Falungong practisers, I fled to the Genzhuang county of Haichen and took shelter in the house of Mrs Li.' 4 The solicitors' letter also addressed 'Country Information', stating (inter alia) that – '7. It is also noteworthy that note of the published decisions of the Tribunal in the period between RRT Reference: NOO/35995 of 23 May 2002 and RRT Reference: NOO/34719 of 12 December 2002 contains a decision relying upon claims to practising Falun Gong. Without access to the Tribunal's unpublished decisions, it is not possible to determine whether this is the result of the Tribunal not taking any decisions based on claims to practise Falun Gong or whether none of the Members has taken a decision sufficiently noteworthy to be published. In either case, the country information shows a serious intention on the part of the Chinese authorities to suppress Falun Gong and serious breaches of human rights in giving effect to their intentions. 8. There is ample country information of recent origin that shows that the Chinese authorities regard Falun Gong as a serious threat to the political system they have created in that country. Despite signs that the Chinese government has relaxed the socialist economic restrictions that bound the country for so long, other aspects of Chinese life remain as tightly controlled as ever. This is particularly true of the political system in place, which entrenches the Communist Party of China and suppresses all other political opinion.' 5 The letter stated (par 9) reports published by the United States State Department in 2001 'might have led to a view' that the attempts by the Chinese authorities to suppress Falun Gong 'had largely run out of steam' and that it would be safe for individuals, such as the applicant, to return to China. However, the letter added, the Country reports for 2002 'reveal a quite different picture'. The letter then cited from a State Department report of 31 March 2003, which included the following statements: 'The Government continued its crackdown against the Falun Gong (FLG) spiritual movement. Thousands of practitioners were incarcerated in prisons, extrajudicial reeducation-through-labour camps, psychiatric facilities or special deprogramming centers. FLG adherents conducted far fewer public demonstrations than in past years, which some observers attributed to the effectiveness of the Government's crackdown. Several hundred Falun Gong adherents reportedly have died in detention due to torture, abuse and neglect since the crackdown on Falun Gong began in 1999. ... During the year, deaths in custody due to police use of torture to coerce confessions from criminal suspects continued to be a problem. ... Since the crackdown on Falun Gong began in 1999, there reportedly have been several hundred deaths in custody of FLG adherents, due to torture, abuse, and neglect.' ... During the year, the Government continued its harsh and comprehensive campaign against the Falun Gong. There were many thousands of cases of individuals receiving criminal, administrative, and extrajudicial punishment for practicing [sic] FLG, admitting that they believed in FLG, or simply refusing to denounce the organization or its founder. By mid-year 2001, the campaign against FLG appeared to have abated somewhat in eastern and southern China, perhaps due to the decreased number of practitioners in those regions, but the campaign in Sichuan Province and the northeast continued. ... However, most practitioners were punished administratively. Many thousands of persons were in reeducation-through-labor camps. Other practitioners were sent to detention facilities specifically established to "rehabilitate" practitioners who refused to recant their belief voluntarily. In addition, hundreds of FLG practitioners have been confined to mental hospitals (see Section 1.d). Police often used excessive force when detaining peaceful FLG protesters, including some who were elderly or who were accompanied by small children. During the year, there were numerous credible reports of abuse and even killings of FLG practitioners by the police and other security personnel, including police involvement in beatings, detention under extremely harsh conditions, and torture (including by electric shock and by having hands and feet shackled and linked with crossed steel chains). Various sources reported that since 1997 several hundred FLG adherents have died while in police custody (see Section 1.a.). In February Chengdu University Associate Professor Zhang Chuansheng, a longtime FLG practitioner, was arrested in his hometown and taken to Chengdu's main prison. He died there 3 days later. Prison authorities claimed the 54-year-old had died of a heart attack, but his family, who saw his body after Zhang's death, claimed he had been severely beaten. FLG practitioners continued their efforts to overcome government attempts to restrict their right to free assembly, especially in Beijing, but the number of protests at Tiananmen Square decreased considerably during 2001 and remained low during the year (see Section 2.b.). In 2001 the Government launched a massive anti-FLG propaganda campaign, initiated a comprehensive effort to round up practitioners not already in custody, and sanctioned the use of high pressure indoctrination tactics in an effort to force practitioners to renounce the FLG. Neighbourhood committees, state institutions (including universities), and companies reportedly were ordered to send all known FLG practitioners to intensive anti-FLG study sessions. Even practitioners who had not protested or made other public demonstrations of belief reportedly were forced to attend such classes. Those who refused to recant their beliefs after weeks of intensive anti-FLG instruction reportedly were sent to reeducation-through-labor camps, where in some cases, beatings and torture were used to force them to recant; some of the most active FLG practitioners were sent directly to reeducation-through-labor camps. These tactics reportedly resulted in large numbers of practitioners signing pledges to renounce the movement.' 6 As has been seen, the 'essence' of the applicant's claims for protection made to the Tribunal was that he was a practitioner, indeed a vice-president and an organiser, of a Falun Gong station – Falun Gong being a quasi-spiritual movement which has been banned by the Government of the Peoples Republic of China. He claimed: that he had organised protests in China; that he was not arrested or detained prior to his departure; that he was assisted to leave China by a Falun Gong practitioner in the Public Security Bureau; that since he left China, his wife has been dismissed from her employment; and that his child has been victimised at school. 7 Pursuant to s 425 of the Migration Act 1958 (Cth) ('the Act'), the applicant was invited to a hearing before the Tribunal on 29 April 2003. He attended this hearing, and was accompanied by his solicitor, Mr Fergus. A transcript of the hearing is in evidence in these proceedings.