Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v NBDS NSD 554 OF 2005 ALLSOP J 28 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 554 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND: NBDS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 28 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as a party to the proceeding in the Federal Magistrates Court and to the appeal. 2. The appeal be dismissed. 3. The appeal stand over to a date to be fixed for argument as to 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 NSD 554 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND: NBDS

RESPONDENT

JUDGE: ALLSOP J

DATE: 28 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal by the Minister from orders made by the Federal Magistrates Court quashing a decision of the Refugee Review Tribunal (the "Tribunal") and issuing a writ of mandamus requiring the Tribunal to redetermine the respondent's application for review according to law. It is appropriate to join the Tribunal to the application below and to the appeal. I will however refer to the visa applicant and the applicant before Federal Magistrates Court as the respondent. 2 The respondent has filed a notice of contention seeking to support the orders of the Federal Magistrates Court. 3 The respondent is a national of China who claimed to have a well-founded fear of persecution should she return to that country by reason of her adherence to Falun Gong. The application for review stated in short form the following: I cannot return to China because I fear persecution because I am an active member of the Falun Gong, which is both a religion and a particular social group. 4 The Tribunal set out the claims of the respondent as the member understood them that were contained in her application claims to the Tribunal. The respondent was a married woman born in 1962. She had one child. Her husband and child remained in China. She lawfully obtained a passport in 2000. After travelling to Thailand in 2001, and returning to China, she obtained a visa to travel to Australia on 5 October 2001. She departed for Australia legally on 29 October 2001. She claimed that she had become an adherent of the Falun Gong. She said that she feared "re-education" for colluding with foreign practitioners. She also claimed to fear punishment for leaving China without telling her workplace authorities and the local police. She claimed to have been previously detained by police. She claimed to have printed flyers about Falun Gong practice and distributed them, as well as posting signs in tourist areas. She said that she had unfurled banners in Tiananmen Square on 9 January 2001, after which she was arrested and detained for four days, sent back to her home province and detained for another 15 days. She claimed that her home was raided and searched and that Falun Gong material was found and removed. She claimed that after her release from detention she was ordered to report daily to police and to accept supervision by her "Neighbourhood Committee". She claimed that later, in February 2001, she was again detained by the police, this time for 12 hours. The following day she was taken to what she referred to as "brainwashing classes" and to a labour camp for a short period. She said that she was told to write a confession, but refused. She claimed to have been detained for 40 days in total. She claimed that in March 2001, under threat of being sent to a labour camp, she signed a letter promising to give up Falun Gong. She claimed that she became ill and remained housebound, but the police and the Neighbourhood Committee kept checking on her. At this point, her husband urged her to leave China. She said that the visa was then obtained through an agent. She said that since leaving China the police have been looking for her. 5 The Tribunal set out at considerable length the conduct of the hearing before it. 6 The Tribunal perceived anomalies and implausibilities in the claims of the respondent. This led the Tribunal to doubt the respondent's credibility. The Tribunal rejected the accounts that the respondent gave about the close surveillance of her by the authorities. The Tribunal stated at pp 17-18 of its reasons: I do not accept either account of the surveillance regime. In the case of the first version, I am unable to accept that if she were under such a tight regime, she would have been able to leave China twice, once for Thailand and then for Australia, and return once, without the knowledge of the police and the NC (and also her neighbours). And I am of the view that the second, later version was watered down specifically in order to be consistent with her claim that she was able to fulfil her responsibility to report to the NC daily merely by ringing from Thailand, and that as the police rang her on her mobile phone, they, too, would not know where she was. I do not accept that she was under any surveillance regime. Furthermore, I do not accept that she was able to leave China for Thailand without difficulty despite being under surveillance, because her tour guide paid a bribe to the PSB exit officer at the airport. I accept the country information which I cited at the hearing, which indicates that this would be most unlikely. Although the report by Dr Chan is dated 1994, I have seen nothing more recent in the evidence available to the Tribunal to supersede it. The 1999 report by DFAT certainly is in accord with Dr Chan's views. I prefer this independent country information to the applicant's unsubstantiated claims. It follows that I do not accept that she would have been able to return to China from Thailand without difficultly because of bribery, or that she would be able to leave for Australia without difficulty, if she were under a strict surveillance regime and therefore of adverse interest to the authorities. If this had been so, whether or not she departed China from Guangzhou or Shenzhen, would be irrelevant. The whole point of a surveillance regime is to monitor, control and restrict the subject's movements and activities. 7 The Tribunal also found as implausible that the respondent did not seek protection in Thailand if she feared persecution. The Tribunal found the trip to Thailand that she had made to be a holiday. The Tribunal concluded that the ease that she had experienced in leaving and re-entering China revealed that she was not of any adverse interest to the authorities. 8 The Tribunal then made further findings as to implausibilities in the evidence of the respondent. I will set out the balance of the substantive reasons of the Tribunal, highlighting and enumerating the parts of them with which this appeal is concerned: There are other implausibilities in her evidence which compound my adverse credibility findings. [1] I am unable to be satisfied that the applicant did not mention the unlicensed beauty parlour business which she owned – though did not attend very often – in any of her evidence prior to the hearing before me, because she did not consider it important and no-one had asked her about it. I make this finding in view of her otherwise very considerable, extremely detailed written evidence. I find that the existence of the beauty parlour, a not insignificant claim, was a late invention aimed at explaining how she was able to carry out the copying of flyers unobserved, and of substantiating the flyers claim itself. The quantity and detail of her evidence also causes me to discount her claim that her memory has suffered. I also find implausible the claim that she delayed her departure from China for some three weeks after receiving her Australian visa because there was a trade fair in Guandong and it was difficult to book tickets to Australia. [2.] This is not logical. A major trade fair might make it difficult to obtain flights into Guandong, but not out of it over a period of several weeks. I personally recall that during the Sydney Olympics, an event of far greater magnitude, while it was difficult to get inward flights, there was an abundance of spare seats for outward flights. I do not accept the adviser's contention that three weeks is not a long amount of time. The applicant also claimed that she was reluctant to leave her daughter. I do not accept this claim either. I am of the view that a person fearing persecution would flee at the earliest possible opportunity. I find that the applicant waited the three weeks before departing because she had no fear of persecution. On the basis of my findings above, I am unable to accept that the applicant was a Falun Gong practitioner in China, that she carried out any of the pro-Falun Gong activities claimed, and that she was ever detained, questioned or harassed by the authorities for Falun Gong activities. [3.] It follows that I am unable to be satisfied that her claims are supported by the police document of 12 January 2001, stating that the applicant was penalised with 15 days of detention for disturbing the social order, or by the receipt for 8,000 yuan paid by her family "for bringing her from Beijing to Guagnzhou", neither of which, as noted, makes any reference to Falun Gong activities. [4.] I am also unable to accept the veracity of the statutory declaration from another person supporting the applicant's claims of persecution in china. [5.] Nor do I accept that the "payment for food" receipt, airline tickets, travel accident insurance documents, passenger coupons, bus tickets, taxi receipt or the three untranslated documents support her claims. [6.] I am also unable to accept the veracity of her husband's statement in his letter that various authorities including the police had been repeatedly calling on him to enquire about her whereabouts. I have given careful consideration to her claim that she will be persecuted if she returns to China. I accept that in Australia she learned the Falun Gong exercises as she demonstrated at the hearing, attended pro-Falun Gong demonstrations, conferences and other events, and posted a 'recantation' on a Falun Dafa website. [7.] However, given my earlier findings that she was not involved with Falun Gong in China, I am of the view that her Falun Gong activities commenced in Australia and were undertaken with the express purpose of strengthening her claims to refugee status sur place. I do not accept that her claimed adherence to Falun Gong is genuine. That is, I do not accept that she is a Falun Gong practitioner. In accordance with s 91R(3), I have therefore disregarded that conduct for the purpose of determining whether the applicant is a refugee under the Convention. It follows that I do not accept that, if the applicant return to China, she will engage in Falun Gong activities. On the basis of the evidence before me, of my adverse credibility findings and of my sur place finding, I find that the applicant does not have a well-founded fear of persecution in China on any Convention ground. (numerical annotation added)