NAYL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 952

FEDERAL COURT OF AUSTRALIA

NAYL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 952 Migration Act 1958 (Cth) s 422B, 424A(3)(a) WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 cited NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 cited Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 cited NAYL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 2513 OF 2003 HELY J 15 JULY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2513 OF 2003

BETWEEN: NAYL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 15 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. 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 2513 OF 2003

BETWEEN: NAYL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 15 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of China and she claims to be a practitioner of Falun Gong. She left China on 18 October 2002. Her application for a protection visa is dated 28 October 2002, and it was lodged on 7 November 2002. In the application she claimed a fear of persecution because of her Falun Gong membership, and that she was not allowed to practice or discuss Falun Gong with anybody. In a document attached to her application the applicant stated she was able to leave China by paying a bribe. She also said that she was 'not a famous member' of Falun Gong and she had been unable to bring any evidence of her claims with her to Australia. 2 On 21 November 2002 the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA') notified the applicant that her application had been refused. The reasons given by the Minister's delegate characterised the applicant's claims as 'vague and lacking in essential detail'. The delegate was sceptical as to the applicant's claim that she was a Falun Gong practitioner, but in any event found that the applicant had not suffered, and was not likely to suffer, persecution. 3 The applicant applied to the Refugee Review Tribunal ('the RRT') for a review of the Minister's decision on 18 December 2002. The RRT received the application on 19 December 2002. The RRT notified the applicant on 23 September 2003 that it had scheduled the applicant's matter for hearing on 10 November 2003. The applicant did not attend the hearing and the RRT proceeded to give its decision which was made on 10 November 2003 and handed down on 4 December 2003. 4 The applicant told me that the reason that she did not attend the hearing was because of a fear on her part of immigration authorities. But even if I assume that this is the explanation for her failure to attend it is not an explanation which she proffered to the RRT. The fact of the matter is that she did not attend and that was a matter the RRT was entitled to take into account, as it did as part of its decision making process. 5 The RRT found the applicant's claims not to be credible. The claims were described as 'vague and bare and contradictory'. The RRT concluded: 'In all the circumstances I do not believe that the Applicant has ever been associated with Falun Gong or that she has come or would come to the adverse attention of the Chinese authorities.' 6 The RRT also concluded that even if it were wrong in its conclusion that the applicant is not a Falun Gong practitioner, she was no more than an ordinary Falun Gong practitioner. Upon the basis of country information, the RRT concluded that an ordinary practitioner of Falun Gong is not of adverse interest to the Chinese authorities. The RRT expressed its conclusion in this way: 'If the Applicant returned to China, I conclude that she would be of no adverse interest to the Chinese authorities. If she is a Falun Gong practitioner, which I do not believe, I note from the country information that public exercises are not an essential or fundamental part of Falun Gong and that ordinary adherents of Falun Gong who practise privately are unlikely to come to the attention of the authorities.' 7 The applicant appeared before me this morning without the benefit of legal assistance and she was only able to address me through an interpreter. She told me and I accept that she does not have an education and is not familiar with Australian law. I sympathise with a person who has to appear before an Australian court in those circumstances. 8 The applicant told me that her main complaint was that the RRT did not look into her case thoroughly. I have to say, having read the RRT's decision more than once, my impression is that the RRT approached its task diligently and carefully, and it gave a very large number of reasons for coming to the conclusion which it did. There is no substance in the applicant's complaint that the RRT failed to look into her case. 9 The amended application which was filed in this Court on 24 February 2004 contends that there was a denial of procedural fairness because the RRT considered country information and failed to discuss that information with the applicant. If the applicant could make out a case that she was not accorded procedural fairness before the RRT, then that could constitute a reviewable error. However, the application for review by the RRT was lodged after s 422B of the Migration Act 1958 (Cth) ('the Act') came into effect. 10 Consequently, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the RRT's obligations in relation to procedural fairness. Therefore, any failure to discuss country information with the applicant cannot constitute a denial of procedural fairness because such information falls within the exception in s 424A(3)(a) of the Act, see WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [57]; NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 at [54] – [56]; and Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 at [18] – [24]. 11 Even putting aside the strictures imposed by s 422B, it is difficult to see any substance in the applicant's submission, as in not attending at the hearing she lost the opportunity of discussing country information with the RRT. In any event, the RRT's primary reason for dismissing the applicant's claim was its lack of satisfaction that the applicant has ever been associated with Falun Gong or that she has come, or would come, to the adverse attention of the Chinese authorities. The RRT's conclusion in this respect did not depend upon country information. 12 Moreover, the applicant was aware of the information from the Department of Foreign Affairs & Trade ('DFAT') which supported the RRT's alternative finding that even if she was a Falun Gong member, the applicant would not attract adverse attention because she was only an ordinary practitioner. In this regard the RRT relied upon the same DFAT information communicated to the applicant in the primary decision of the delegate. 13 It follows from what I have said that the applicant has failed to establish any jurisdictional error on the part of the RRT. The application made to this Court must therefore be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.