FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 763

MIGRATION – refugee - application for judicial review of a Refugee Review Tribunal decision – claim that applicant not afforded adequate hearing by Tribunal – contentions put by applicant not made out – application dismissed.

Migration Act 1958 (Cth)

Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 referred to

DE RONG CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 121 of 2001

MOORE J

22 JUNE 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application by De Rong Chen (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 10 December 2000 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background

2                     The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 5 October 1999.  On 8 February 2000 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 12 February 2000 a delegate of the Minister refused the grant of a protection visa and on 16 March 2000 the applicant applied to the Tribunal for review of that decision.

3                     The applicant’s claim for refugee status is, essentially, based on his fear of persecution in China by reason of his involvement with the Falun Gong movement and his practice of its teachings.

The Tribunal’s reasons

4                     The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 and Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553.  In a section in the decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant.

5                     The applicant is a twenty-eight year old man from the Fujian province of China.  He became a practitioner of Falun Gong in April 1999, and until his departure from China in mid-September 1999, was an active participant who introduced the practice of Falun Gong to “more than 300 people”.  He claimed to be known to the authorities and to have been placed on a “black list”, a result of the high profile he had achieved in his home town due to his Falun Gong activities.  The applicant was able to avoid being detained during raids conducted by the Public Security Bureau on Falun Gong practitioners, and fled China believing a warrant had been issued for his arrest.  The applicant left China for Thailand on 1 October 1999, travelling from Thailand to Australia on a false passport and arriving here on 5 October 1999.

6                     The Tribunal, before addressing the applicant’s claims in a section of its decision titled “Findings and Reasons”, set out detailed background information on the Falun Gong movement covering its inception, teachings and the treatment of its followers.

7                     Briefly, the Falun Gong organization was established in 1992 by Li Hongzhi and was registered with the Qigong Research Association of China.  Its aim is to improve moral character through “increased self-awareness”, and is a combination of Qigong, Buddhism, Taoism and Confucianism which promotes traditional forms of morality, “encouraging practitioners to abstain from alcohol and Mah-jong and to maintain their marriage vows.”  In 1994 the founder, Li Hongzhi, left China with the aim of promoting Falun Gong in other countries.  In 1996, after deciding to take up residence in the United States of America, he proclaimed that Falun Gong was not able to reach its goals as long as it remained with the Qigong Association.  This effectively left Falun Gong without any legal status in China.  It was after this that the organization began to experience problems with the authorities.

The Tribunal’s Findings and Reasons

8                     The Tribunal commenced its findings by stating that it did not accept that the applicant would be of interest to the Chinese authorities as it did not believe he was “an organiser, nor that he was responsible for recruiting hundreds of people, nor that he was on a black list, nor that there was a warrant for his arrest, nor that he had been involved in any protests.”  It went on:

“The Tribunal makes these findings based on the country information and the applicant’s own evidence that he very rarely practices FalunGong [sic] with others and even when in China had practised in public in a park only occasionally.  This is not consistent with a claim that he was an organiser, the police were looking for him, or that he recruited others.”

9                     In relation to the applicant’s claim that he would be persecuted because of his political opinion, the Tribunal found:

“The applicant has not supplied sufficient detail to satisfy the Tribunal that this is true and relied on the bare claim of persecution without sufficient supporting detail as to where, why and how this had or would in future take place.  The political opinion reflected in the practice of Falun Gong, which is outlawed, is supported by only the applicant’s own evidence that he does not often practice Falun Gong.”

            The Tribunal concluded by indicating it doubted the applicant’s claimed association with Falun Gong, and considered any involvement to have been in a minor capacity only.  Based on this finding the Tribunal indicated neither his past nor present activities would make him of continuing interest to the authorities, and that therefore he did not have a well-founded fear of persecution.  It affirmed the decision not to grant a protection visa.

Consideration of the application for judicial review

10                  At the hearing of the application for judicial review, the applicant was unrepresented.  He spoke through an interpreter.  The application filed in this Court on 4 February 2001 did not identify, in any coherent way, the grounds of review together with particulars of them.  However one matter which was adverted to in the application was that the applicant had not been given a hearing on the day appointed by the Tribunal, namely 6 December 2000.  The applicant alleged that he attended at the Tribunal before 10.15 am on 6 December 2000 but the hearing did not commence then and only commenced at 4.40 pm.  I accept, as submitted by the Minister, that the reason why the hearing did not take place earlier on that day was because the applicant failed to respond to correspondence from the Tribunal which would have signified his intention to accept the invitation (in the correspondence) to attend a hearing on the nominated day.

11                  In the application filed in this Court the applicant noted that the Tribunal did not refer in its reasons for decision to the hearing it had conducted.  The contention that there had been no hearing by the Tribunal was repeated in oral submissions at the hearing of the matter in this Court on 12 June 2001.  The applicant contended, in substance, that the hearing only involved formalities.

12                  It is correct that the Tribunal did not refer, at least expressly, to the hearing of 6 December 2000 in its reasons for decision.  I thought that it was unusual that no mention was made of the hearing in the reasons and when the applicant made the submission he did on 12 June 2001, I considered I should be informed of the course the hearing took before the Tribunal.  Accordingly I invited counsel appearing for the Minister to indicate whether the tape of the hearing could be transcribed and a copy of the transcription provided to the applicant.  It was accepted that this could be done and I then gave directions to this effect.  The matter was adjourned until 19 June 2001.

13                  However the transcript reveals that the hearing before the Tribunal was unexceptionable and involved the Tribunal asking questions of the applicant about the matters on which his claim was based.  Towards the end of the hearing the Tribunal member indicated to the applicant that he had no further questions to ask the applicant.  The Tribunal member then asked the applicant whether he had any more information he wished to give to the Tribunal.  The applicant said he did not.  The applicant now says the reason why he answered this way was because he knew the building in which the hearing was being conducted was going to shut at 5.00 pm and no purpose would have been served by embarking on an explanation which would have taken two or three hours.  He also said he was nervous.  Even accepting, for present purposes, that an unsworn statement made from the bar table in proceedings such as these is of some probative value and relevant, the explanation appears to me to be nothing more than a belated attempt to give the hearing on 6 December 2000 a colour it does not warrant.  I do not accept that the Tribunal did not undertake as extensive an inquiry as was justified in the circumstances.

14                  It appears to me that the factual foundation of the contention of the applicant that there was no hearing is not made out.  Accordingly it is unnecessary to embark upon a consideration of what the Act requires of the Tribunal, if anything, in conducting a hearing and to what extent, if at all, the manner in which a hearing is conducted is amenable to judicial review: see, for example, the discussion by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472.

15                  I dismiss the application and order the applicant to pay the Minister's costs.

Associate:

Dated:              22 June 2001

The applicant appeared in person