FEDERAL COURT OF AUSTRALIA

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 448

MIGRATION – refugees – application for protection visa – fear of persecution – whether tribunal failed to take into account statements made by applicant – natural justice – country information – whether country information should be disclosed – whether breach of procedural requirements of Migration Act 1958 (Cth) in failure of obligation to give applicant particulars of any information which would be a reason for affirming decision under review – whether 424A(3) applies to country information – exceptions

Migration Act 1958 (Cth) ss 424A(1), 424A(3)

Freedman v Petty and Greyhound Racing Control Board [1981] VR 1001 applied

Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59 cited

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 cited

R v London Borough of Camden; Ex Parte Paddock [1995] COD 130 considered

R v Secretary of State for the Home Department; Ex parte Akdogan [1995] Imm AR 176 cited

R v Secretary of State for the Home Department; Ex parte Sittampalam Thirukumar [1989] Imm AR 402 cited

Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 considered

Re Minister for Immigration and Multicultural Affairs; Ex Parte ‘A’ (2001) 185 ALR 489 considered

Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 applied

Stead v State Government Insurance Commission (1986) 161 CLR 141 applied

M Fordham, Judicial Review Handbook, 3^rd edn, Oxford, Portland Oregon, 2001

VHAP of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V660 of 2002

FINKELSTEIN J

16 MAY 2003

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application. 

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of China.  She claims to be a Convention refugee, asserting that she fears persecution on account of her religion (she is a Christian) and her political opinion (based on her support of the Falun Gong) if she were required to return to China.  The Minister’s delegate did not accept her claim, and refused to grant her a protection visa.  The tribunal affirmed the delegate’s decision.  The applicant now seeks the issue of a writ of certiorari to quash the tribunal’s decision and a writ of mandamus to compel the tribunal to reconsider her application.

2                     The case the applicant put to the tribunal is to be found in a number of written statements as well as in the oral evidence which she gave at the hearing.  In substance, her case was as follows.  The applicant was born into a Catholic family and was a regular churchgoer, being a member of both the Catholic church and a protestant church.  In 1999 she was introduced to some Americans and became involved with them socially, as well as attending church with them.  This caused problems at work.  At the time the applicant was working as a supervisor in a state-run operation.  She was told by people at work to avoid contact with foreigners and to stop being a Christian.  Political security officers began to keep her under surveillance and she was treated so badly at work that she had to leave and could not find work in another city.  Some of these problems resulted from the applicant having expressed support for the Falun Gong, although she was not an adherent of that group.

3                     In the statement which accompanied her application for a protection visa the applicant said that she was able to obtain a passport to leave China.  Her precise words (perhaps as translated) were:  “As my friend help, I get my passport and I am very lucky to get the Australian visa.”  The Minister’s department wrote to the applicant advising that it had information to the effect that it was improbable that a dissident or individual of interest to the political security officers would be able to obtain a passport issued in his or her own name.  The information available to the Minister also suggested that Chinese border police checked the identity of individuals arriving at points of departure against a movement alert list which contains the names of known political activists included in that list.  The applicant was invited to respond to this information.  The applicant took up the invitation and wrote to the department as follows:

“I am very hard get my passport.  If I apply by my self, I know I can not get it.  I have a very good friend working in China travel service.  In beginning I tell them I will join to thire tour and I paid 50,000 RMB deposit to them.  They sponsor me to get passport and visa.  …  I am not falun gong activists, I am just different opinion.” 

4                     The applicant provided further information in support of her application in the document constituting her application for review of the delegate’s decision.  In that document she said:

“…I am not ‘Falun Gong’ practitioner.  Some people said me was a ‘Falun Gong’.  My leader not give me working and free.  I have trouble all the time.

……

My leader known want to stop me believe faith…Also they report to the local supreme court.  Around I abode often had badly man keep watch on me.  If I go out they send public security follow closely me.  Local court catch guitless person even killed good people.  I have not human right in that society.”

5                     The applicant also produced a written statement to the tribunal when the hearing commenced.  Relevantly that statement read:

“I was forced to leave China as I was being spied on all and threatened by the authorities after my involvement in peace activities.  I am a Christian in the Shandong Province, and attended church gatherings where I expressed my opinion on the inequalities and injustices in China.  Other people who had participated in these activities had become political prisoners in our country, who were taken away, tortured, imprisoned, and brainwashed.  I was closely watched by the authorities, and I had men constantly shouting abuse and threats at me.

I left China in secret by getting a passport through the help of a friend. I did not tell family I was leaving in case they were interrogated.  I was also accused of being part of Failingong activities and felt my life and freedom were in grave danger, so I had no choice but to escape China.

China is a country that does not believe in human rights.  I have some research from the Internet to back up my claims about Christians persecuted in China.  I would like to live in freedom where I would be safe from persecution.  My life is far from safe in China due to the activities I participated in, and also due to the fact that I escaped from China.”

6                     As already noted, the tribunal rejected the applicant’s claim that she was a Convention refugee.  The tribunal rejected the claim because it was not satisfied that the applicant faced a real chance of persecution on account of her religion (although it was accepted that she was a practising Catholic) or her political opinion.  On the first ground the tribunal said:

“[The applicant] is not involved in any organised political activity, and her political views have not been widely broadcast.  Her profile is low and innocuous.  While it is true that the rule of law is not upheld properly in China, the regime’s control of political dissent does operate according to some internal logic.  The Tribunal refers to DFAT’s CIR on religious persecution cited above, as illustrative of the now normal pattern of social control in China: to target the leaders of any suspect organisation, rather than the rank and file.  Being the organiser of activities in the realm of hymn singing does not meet this criterion.  The applicant has not actually challenged the Communist Party regime in any way.  There is no information substantiating the claim that the scenario outlined above (participation in Church discussion groups at a registered Church) would lead to punishment even if the content of the discussion turned to criticism of the Chinese regime or brought out anti-Communist values.

7                     As to the allegation that there was a real chance of persecution on account of the applicant’s support for the Falun Gong, the tribunal said that the claim “… did not make sense, and the Tribunal does not accept it.” It went on to explain that “Main stream Christianity and Falun Gong have almost nothing in common (and arguably incompatible belief systems).  And the applicant was on her evidence, not involved in Falun Gong.  Even if she had commented critically on the ban of Falun Gong, in the discussions with friends and colleagues, the deduction that she was a practitioner would still be nonsensical.” 

8                     The applicant contends that the tribunal erred in law in several respects and that each error was of a kind which justifies the relief sought.  The contention gives rise to a number of difficult issues which require resolution.  Before turning to deal with those issues, it is necessary first to identify the respects in which it is alleged that the tribunal erred in law.  Four errors are alleged; failure to take into account relevant material; a breach of the rules of nature justice; breach of statute; and unreasonableness.  By virtue of the decision of the Federal Court in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59, the last ground of complaint is not pressed.  It is put forward so that it may be relied upon on an appeal, if an appeal is instituted. 

First ground:  It is said that three statements made by the applicant were not taken into account by the tribunal.  Two statements appear in the document tendered at the commencement of the hearing.  The statements are:

“Other people who have participated in [the religious] activities have become political prisoners in our country, who were taken away, tortured, imprisoned and brainwashed.”

I have some research from the Internet to back up my claims about Christians persecuted in China.”

The third statement in respect of which it is alleged the tribunal failed to take into account is the applicant’s assertion that her life would be in danger “also due to the fact that I escaped from China”. 

9                     I do not accept that the tribunal committed any error of law as has been alleged.  Let me deal with the statements in reverse order.  As to the allegation that the applicant may be persecuted on account of the fact that she “escaped” from China, there is this difficulty.  The tribunal did not accept that the applicant had in fact “escaped” from China.  It is true that the tribunal proceeded upon the assumption that the applicant had difficulty obtaining a passport or exit permit.  However, it described those difficulties as nothing more than “bureaucratic or extortionate”.  The tribunal held that any suggestion that the difficulty related to political opinion or religious status “is nothing more than speculation”.  Having made this finding there was no reason for the tribunal to deal any further with the applicant’s assertion, especially as it was unsupported by any other evidence or material. 

10                  The submission that the tribunal was required to have regard to material on the Internet cannot be accepted for a number of reasons.  In the first place, the tribunal is required to act on evidence that is placed before it, although that evidence need not be of a kind which is admissible in a court of law.  Assuming that the statement that the Internet contains material concerning Christian persecution in China is evidence of the fact of persecution, here that evidence would not have assisted the tribunal.  The reasons are obvious.  First, the source of the information that appears on the Internet was not identified and therefore it would have been impossible for the tribunal to assess the reliability of the evidence.  Second, it is common knowledge that there is persecution in China of persons engaged in religious practise at an unregistered place of worship.  Perhaps the Internet material only related to that type of persecution.  One simply does not know.  Thus, in the absence of any details of what appears on the Internet, the tribunal could not assess its relevance.   

11                  In my opinion much the same comments can be made about the applicant’s statement that other people who have participated in religious activities have been tortured, imprisoned and brain washed.  The statement does not deal with the degree of participation in a religion which would excite the interests of the authorities and have them act in the way alleged.  It will be remembered that, according to the tribunal, the applicant’s involvement in her religion was “low key”.  Further, the tribunal found that leaders of religions may be targeted by authorities, but that the “rank and file” were not similarly targetted.  When considered in this context, the applicant’s statement is so devoid of detail that it could not have advanced her case before the tribunal.  In these circumstances, it is impossible to criticise the tribunal for not having commented upon it. 

12                  Second ground:  To resolve the applicant’s claim the tribunal was required to have regard to the situation in China.  The applicant’s claim was premised on a number of bases:  that religious freedom is not tolerated in China; that democratic movements are suppressed; and that members of the Falun Gong are arbitrarily arrested, imprisoned and beaten.  The nature of her allegations also required the tribunal to investigate the ease with which a Chinese citizen could obtain a passport to leave the country.  The tribunal obtained “country information” about these topics and based its conclusions in part on that information.  The sources to which the tribunal had regard included:  (1) In relation to procedures for leaving China, the laws relating to the control of exit and entry of citizens, commentary by the Department of Foreign Affairs and Trade (DFAT) on whether a dissident could obtain a passport and a statement by a senior lecturer in Chinese politics at the University of New South Wales; (2) In relation to the treatment of Christians in China the tribunal had available to it the 2001 United States International Religious Freedom Report (China) and a report from DFAT; (3) A research paper and academic papers dealing with the treatment of dissidents in China; and (4) In relation to the Falun Gong the tribunal relied on information obtained on the Internet, a US State Department report on International Religious Freedom and a report from Amnesty International, among other sources. 

13                  As previously mentioned, before the delegate’s decision the applicant had been advised that the department had available to it information which suggested that it was improbable that dissidents or individuals of interest to the Chinese government could obtain a passport.  She was also advised that country information suggested there had been a loosening of government control over, and a resurgence of, religious activity with millions of citizens adhering to Christianity.  The applicant was invited to respond to this information.  She provided a response.

14                  However, none of the other country information in the possession of the tribunal was provided to the applicant either before or during the hearing.  The applicant says, and this is not denied, that the undisclosed information formed, at least in part, the basis upon which the tribunal reached its decision.  For that reason, she says the tribunal breached the rules of natural justice, thus rendering its decision ineffective.

15                  It goes without saying that one of the basic requirements of a fair hearing is that the decision-maker must disclose to the person affected by his decision any information in his possession which is relevant to the decision.  The requirement is obvious in relation to adversarial proceedings.  In Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 603-604 Lord Mustill said:  “My Lords, it is the first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion.  This principle is lame if a party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.”  The same principle applies to proceedings which are not adversarial such as proceedings before the tribunal, (see: R v Secretary of State for the Home Department; Ex parte Sittampalam Thirukumar [1989] Imm AR 402, 414; R v Secretary of State for the Home Department; Ex parte Akdogan [1995] Imm AR 176, 179-181), although perhaps not with the same degree of rigour (as to which see National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 315 per Gibbs CJ and 322-323 per Mason, Wilson and Dawson JJ).  Nevertheless, in proceedings before the tribunal an applicant has a right to make representations and that right would be meaningless if the applicant is not informed of adverse material which the tribunal may take into account in arriving at its decision.  If the material is contained in documents then, speaking generally, the documents should be made available to him.  As Sedley J said in R v London Borough of Camden; Ex Parte Paddock [1995] COD 130 (quoted in M Fordham, Judicial Review Handbook, 3^rd edn, Oxford, Portland Oregon, 2001 at 850): “It is neither technical nor unduly onerous for decision-makers in every branch of public life to understand and work by this principle, and to appreciate that it means in turn that they should not receive relevant material from outside sources without the knowledge of those affected.”

16                  It was contended by the Minister that, in discharging its duties as decision-maker, it was enough that the tribunal put to the applicant questions based on the information in its possession.  In Freedman v Petty and Greyhound Racing Control Board [1981] VR 1001, it was alleged that there had been a breach of the rules of natural justice by the failure of the Board to disclose documents.  The Board contended that there was no such failure because all allegations known to the board had been put to the plaintiff in the form of questions.    Marks J rejected this submission.  He said (at 1021):

“[The submission] overlooks essential matters.  The plaintiff was not told that he was being given an opportunity to answer allegations in statements in the possession of the Board.  He was merely asked questions.  Accordingly, he did not know that the Board’s mind might be affected by [them] ….  Putting questions is not necessarily the same as putting allegations … .”

17                  In my view, there has been a breach of the rules of natural justice in this case.  But to make that finding does not end the matter.  It is not every breach of the rules of natural justice which gives rise to a remedy.  In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court explained that a breach of the rules of natural justice did not, in all circumstances, require a further hearing.  The Court acknowledged the existence of the general rule that if there has not been a fair hearing, there should be a new hearing.  But the general principle is subject to an important qualification, namely that if the result of a new hearing would inevitably be the same, so as to render an order for a new hearing futile, there is no reason to grant the remedy.  The Court said (at 145-146):

“For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules O 58, rr 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

See also Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 a case which concerned proceedings before the tribunal.  It was held that once a breach of the rules of natural justice was proved, the matter should go back to the tribunal unless the Court can confidently say that the breach could not have affected the outcome. 

18                  In this case I am satisfied that even if the applicant had been provided with all the documents upon which the tribunal relied, she would not have conducted her case before the tribunal any differently.  Nor would it have affected the outcome of her application.  Most of the information contained in the documents relied on was uncontroversial, in many respects in the public domain, and much of it was likely to be known to the applicant.  Secondly, even if I am wrong on the first point, it is difficult to see how the applicant could ever be in the position where she could controvert the information, if any of it was controversial.  I draw particular attention to the fact that the applicant did not assert that she would have run her case differently if she had been given the country information.  Nor did she indicate how she might have been deprived of the opportunity of making submissions which might have persuaded the tribunal to act differently.  Her failure to explain how she has been adversely effected is relevant to the present inquiry: Re Minister for Immigration and Multicultural Affairs; Ex Parte ‘A’ (2001) 185 ALR 489, 500-501.  I am mindful of the fact that a court should only reluctantly conclude that a denial of natural justice would have no bearing on the case, but that is the position I find myself in.

19                  Third ground:  Section 424A(1) of the Migration Act 1958 (Cth) imposes an obligation upon the tribunal to give an applicant particulars of any information that the tribunal considers would be a reason for affirming the decision under review, point out the relevance of that information and invite the applicant to comment.  The obligation is subject to certain exceptions.  For example, the section does not apply to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”:  s 424A(3).

20                  The applicant says that the tribunal breached s 424A(1) by not giving her particulars of the country information to which reference has already been made.  The Minister concedes that the applicant was not given particulars of that information, but contends that the information is covered by the exception. 

21                  Clearly, the country information is not specifically about the applicant or another person.  The question is whether the country information is “just about a class of persons of which the applicant or other person is a member”.  Most of the information is about classes of persons.  The classes are dissidents wishing to leave China on a passport, Christians wishing to practise their religion, members of the pro-democracy movement and adherents to the “ancient practice” of the Falun Gong.  Not all of the information, however, is about a class of persons of which the applicant is a member.  For example, the applicant does not claim to be a member of the Falun Gong.  To the extent that the information is simply about a class of persons of whom the applicant is not a member (as is the case with the information that is concerned solely with the Falun Gong), the information will not relate to a reason for the tribunal to affirm the decision under review.  The same may be said of information dealing with difficulties faced by dissidents who wish to leave China.  The applicant might have claimed to be such a person (a dissident), but that evidence was not accepted by the tribunal.  Accordingly, the information about dissidents leaving China did not form a reason for the tribunal’s affirmation of the delegate’s decision.  That is not to say that information about the Falun Gong as potential dissidents in China is irrelevant.  To the extent that the information tells the tribunal something about the treatment of persons who are, or who are perceived to be, connected with these groups, it may be very relevant.  But information of that type is information about a class of persons, such as associates of the Falun Gong, or supporters of dissidents and is, accordingly, covered by the exception.  There is other information which falls into this category.  It is not necessary to set it out.  The principle which I have applied to the examples specifically mentioned can be applied to that other information.

22                  As none of the grounds of alleged error have been made out, the application must be dismissed with costs.

Associate:

Dated:              16 May 2003