NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033

FEDERAL COURT OF AUSTRALIA

NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 NAQR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 700 OF 2004 BEAUMONT J SYDNEY 11 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 700 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAQR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 11 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The appeal 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 700 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAQR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 11 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 This is an appeal from NAQR v MIMIA [2004] FMCA 316 (Barnes FM), dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa. 2 The appellant applied for the visa on 29 January 2002. The delegate's decision refusing the visa was made on 26 April 2002. The appellant applied to the Tribunal for review on 13 May 2002. On 7 March 2003 the Tribunal wrote to the appellant informing her that it was unable to make a favourable decision on the information before it and inviting her to a hearing on 8 April 2003. The appellant accepted the invitation, but did not attend the hearing. In those circumstances, as the Tribunal noted, s 426A of the Migration Act 1958 ("the Act") permitted it to proceed to make a decision without taking any further action to allow the appellant to appear. The Tribunal handed down its decision on 29 April 2003. 3 The appellant claimed to fear persecution for reason of her religion in China. She claimed to be a practitioner of Falun Gong, and to have been detained, mistreated and dismissed from her employment in a foreign trade company after attending a Falun Gong rally in Beijing in April 1999. No dates or details were provided. She claimed that she would be arrested and detained if she returned to China and would be unable to practice Falun Gong privately, although she acknowledged that she was not a Falun Gong leader and was able to leave China legally on a passport in her own name. 4 The Tribunal was not satisfied that the appellant's fears were well founded, noting that she had not attended the hearing and that her claims that she would be mistreated, unable to find employment and unable to practice Falun Gong privately were inconsistent with independent country information before the Tribunal and with the appellant's past employment. 5 It is apparent that the appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its assessment based on independent country information that her claimed fears were not well founded, since it is unlikely that refugee status is to be granted to a person whose account, even if plausible and coherent, is inconsistent with the Tribunal's understanding of conditions in that person's country of nationality: Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J (although here the Tribunal has not found that appellant's claims "plausible and coherent"). 6 In summary, the Tribunal's decision proceeded as follows. 7 The Tribunal set out the appellant's claims, including the following: (i) She became a Falun Gong practitioner for health reasons and found herself being targeted when the Chinese government began its crackdown on the movement. (ii) She had been employed in the private sector, had been detained and mistreated when she was mistaken for a Falun Gong leader in her work group, was released when the authorities could not substantiate her association with the local Falun Gong and was ultimately sacked because of her religious beliefs. (iii) Several of the appellant's co-practitioners had similar experiences and fearing for her life, she decided to flee. 8 In response to country information regarding the treatment of Falun Gong adherents and concerns raised about the appellant's credibility, the appellant claimed: "whoever practi[s]es Falun Gong, no matter secretly or publicly, will definitely be jailed as soon as the practice is known to the relevant authorities." 9 The appellant further claimed that the authorities specially target people who return from overseas as it is believed that these people "…have spread Falun Gong abroad and damaged the benefit of the country." 10 For these reasons, the appellant claimed she would be unable to practise Falun Gong privately if returned to China, although she acknowledged that she was able to leave China legally on a passport issued in her own name and was not a Falun Gong leader. 11 The appellant accepted that some Falun Gong adherents returning from abroad have not been detained or penalised by the authorities when they agreed to give up the practice of Falun Gong, but feared that if she forswore the practice of Falun Gong, she would have health problems. 12 Using independent country information, the Tribunal set out a brief history of the Falun Gong movement, including its development and its 'policy of confrontation with authorities'. 13 Under the heading "Overview of types of treatment of Falun Gong practitioners since 1999", the Tribunal stated that there was a 'crackdown against Falun Gong' in July 1999; that by October 2000, the government was demonstrating less tolerance for 'rank-and-file practitioners who continued to defy the government by participating in protest rallies'; and that there were increasingly more restrictive measures implemented during 2001, including, inter alia, more severe sentences, 'allegedly incorporating the use of psychiatric institutions to detain and "re-educate" Falun Gong practitioners'; and an 'increase in systematic and state sanctioned violence against Falun Gong practitioners'. 14 Turning to 'evidence of differential treatment of leaders and followers', the Tribunal cited reports in 1999 and 2001 by DFAT, which, the Tribunal said, indicated that 'the Chinese government's campaign against Falun Gong had targeted the leaders and organisers of the organisation, and those with some degree of influence or recognition'. A Canadian Immigration and Refugee Board research response in January 2000 also reported a distinction between leaders and followers. 15 However, the Tribunal also cited the US Department of State's International Religious Freedom Report 2002, which the Tribunal said 'suggests that the targets for such repression were widened from those groups discussed above'. 16 The Tribunal made these findings: 17 The Tribunal said: "It remains for the [appellant] to satisfy the Tribunal that all of the statutory elements are made out … the relevant facts of the individual case will have to be supplied by the [appellant] … in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the [appellant's] case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made… ." 18 The Tribunal accepted that the appellant may well be a Falun Gong practitioner, but gave weight to the DFAT country information and other information supporting it and found that she would be able to continue her practice as an individual and that this would not attract the adverse attention of the Chinese authorities. 19 The Tribunal further stated that the appellant had not provided any evidence that she has a leading role in the Falun Gong movement in Australia. Had she attended her hearing, the Tribunal would have put this to her. 20 Accordingly, the Tribunal was not satisfied, on the evidence before it, that the appellant has a well-founded fear of persecution within the meaning of the Convention and did not, therefore, satisfy the criterion set out in s.36(2) of the Act for a protection visa. 21 Further reference will be made to the Tribunal's reasons later in these reasons.