FEDERAL COURT OF AUSTRALIA

NAQS v Minister for Immigration & Multicultural & Indigenous Affairs                [2003] FCA 1137

MIGRATION – protection visa – application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to the applicant a protection visa – whether the Refugee Review Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – whether the Refugee Review Tribunal had regard to all of the applicant’s claims – whether the Refugee Review Tribunal’s decision was an improper or unreasonable exercise of power – whether the Refugee Review Tribunal has a discretion in deciding if it wishes to hear witnesses produced by the applicant – whether the applicant can gain relief where the Refugee Review Tribunal excluded a witness from the hearing where the applicant has put on no evidence indicating whether or not the excluded witnesses would have been able to provide evidence would have been relevant – whether the Refugee Review Tribunal conducted a review within the meaning of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 353, s 411, s 414, s 425, s 426, s 427, s 428, s, 429A

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

N1202/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2001)68 ALD 21

SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80

NAQS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 613 of 2003

HILL J

21 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.
2. The decision of the Refugee Review Tribunal be set aside, and the matter be remitted to a Refugee Review Tribunal differently constituted to be determined according to law.
3. The respondent Minister pay the applicant’s costs.

THE COURT DIRECTS THAT:

1. The Registrar of the Court forward a copy of these reasons to the Principal Member of the Refugee Review Tribunal for his information.

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 the People’s Republic of China.  I say this, although, the Refugee Review Tribunal member (‘the Tribunal’) who decided her application for review of an adverse decision of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refusing the grant of a protection visa, made no finding covering her citizenship, presumably because it took the view that unless it could locate any information to support an assertion made by the applicant, it inferred that ‘either the situation did not occur or the alleged fact is not true’.  It was not contested that the applicant was Chinese, nor was there any evidence to suggest to the contrary.  She certainly spoke both Mandarin and Cantonese and was of Chinese ethnic origin and held a valid passport issued by the Chinese People’s Republic.

2                     Shortly after the applicant arrived in Australia she applied for a protection (class XA) visa.  Her application was refused by a delegate of the respondent Minister.  There was no suggestion by the delegate that she was other than Chinese.

3                     The applicant then applied to the Tribunal for review of the delegate’s decision.  Her application to the Tribunal was unsuccessful and the Tribunal affirmed the delegate’s decision not to grant to her a protection visa.  The applicant now seeks judicial review of the Tribunal’s decision.

4                     It is a criterion for the grant of a protection visa that the applicant is a person to whom Australia has protection obligations.  Australia generally speaking has protection obligations to a person who is a refugee within the meaning of Article 1(A)(2) of the 1951 Convention relating to the Status of Refugees as affected by the 1967 Protocol relating to the Status of Refugees herein compendiously referred to as ‘the Convention’.  Article 1(A)(2) relevantly defines a ‘refugee’ as any person who:

‘owing to well-founded fear of being persecuted for reasons of race ,religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…’

The applicant’s case

5                     It was the applicant’s case that in 1999 (in her application she had given the year as 1997 but volunteered that the date was an error) she had taken up the practice of Falon Gong.

6                     Falon Gong was declared by the Chinese government to be an illegal organisation.  This did not deter the applicant.  Together with three other practitioners of Falon Gong she took a train to Beijing on 7 January 2001.  They arrived at Tianamen Square on 9 January 2001. Many other practitioners were there.  The applicant unfurled a banner saying, ‘Falon Dafa is good’.  The police swarmed over Tianamen Square arresting and pushing Falon Gong practitioners into police vans.  They arrested the applicant. 

7                     At the Tianamen police substation the applicant claimed to have been confined with others in steel cages.  She was transferred on the same day to the West Beijing Public Security Department and was forced to pay 50 yuan for a photograph which identified her.  After her fingerprints were taken she was moved to yet another police station where she was interrogated.  She claimed to have witnessed a young girl of around 18 years beaten and given two black eyes. 

8                     The applicant was confined in the basement of the provincial representative’s office in Beijing, together with fifteen other practitioners and forced to sleep on the icy cold concrete floor sharing a blanket with six or seven others.  She claimed to have been stripped naked and body searched.  The sum of 1,000 yuan was taken from her and she suffered torture and abuse. 

9                     On 12 January 2001 the applicant was returned to Guangzhou and detained there for fifteen days.  In corroboration of her story she produced a translation of a certificate stating that she had contravened public security and disturbed the social orders and was to be punished with fifteen days of detention.  The document noted a right of appeal to the Superior Level of Police Department within sixty days.  Her husband was forced to pay 8,000 yuan, the equivalent to AU$2,000, that being approximately ten months salary of an ordinary worker in urban China.  Her house was ransacked and her personal belongings, including Falon Gong books and materials removed.  Ultimately, the applicant was released from detention after the fifteen days had passed but on the condition that she report daily to the local committee and police station and accept supervision from the neighbourhood committee.

10                  Eleven days after her release she claimed to have been ‘kidnapped’ by the police.  Three policemen had come to her home and taken her to a police van where she was then driven to Taikang Police Station.  She spent twelve hours in the police station in sub-zero conditions.  The next day she was sent to a brainwashing class in Dajianshan along with thirty other practitioners.  She was watched by two person on a 24 hour basis and forced to live in a closed cage and tortured.  This continued for a period of 40 days during which time the applicant claimed to have been tortured both physically and mentally.  She was threatened with being sent to a forced labour camp if she did not write a letter giving up Falun Gong.  She claimed to have signed the letter following which she was released. 

11                  She continued to be watched, she said, by the local police who checked on her whereabouts.  She was ordered by the chief of the neighbourhood committee to attend a public event but did not comply with the order.  In the result a police van came to her home and she was warned to comply in the future.

12                  The applicant left China in July 2001 for Thailand but returned two days later.  She apparently had no difficulty leaving China.  Upon her return she continued to work and live in China for another three months before leaving China for Australia.  Again she had no difficulty leaving China.

The Hearing

13                  After the applicant applied to the Tribunal for review of the Delegate’s decision she received the normal Tribunal response in which she was requested to indicate, among other things, whether she wished evidence to be taken from witnesses.  She noted that she did and would advise the names of the witness, being a representative from the Fa Lun Fo Xue Association of Australia.  Numerous statements from witnesses one claiming to have known the applicant in China but most to have known her only since her arrival in Australia were forwarded to the Tribunal for its consideration.  Generally the statements were on oath.  At the hearing the applicant was unrepresented.  Her legal representative had apparently become ill and sought an adjournment but the application for adjournment was countermanded by the applicant who indicated she wished to proceed with the hearing on her own.

14                  Perhaps it was because the applicant had indicated the intention to call only one witness that the Tribunal member was somewhat taken back when she noticed a ‘whole pile of people’ in the hearing room, most of whom were there, so she was told to give the applicant moral support.  The applicant indicated that she wished to call five witnesses all of whom were waiting outside the hearing room.  The Tribunal asked what it was that the witnesses would say.  She was told that one of the witnesses would give evidence regarding what happened when the applicant was in China and the other four witnesses would give evidence about what had happened to the applicant since she arrived in Australia.  The member indicated that as far as what had happened in Australia since the applicant arrived here she did not wish to hear from the four witnesses.  She then questioned the applicant as to what the one witness was to say who could give evidence as to what happened in China.  The applicant said that the witness would testify that the applicant was a member of the Falun Gong in China.  The member said that she was quite happy to accept what the applicant herself had to say about that and so did not wish to hear from the witness.  One of the grounds of review concerns this refusal.

15                  I wish to say something about the way the Tribunal hearing was held.

16                  I appreciate that Tribunal members are under a great deal of pressure.  They are required by the Migration Act 1958 (Cth) (‘the Act’) to undertake a review that is fair, just, economical, informal and quick, not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case (s 420).  Tribunal members often conduct a number of hearings in a day and make decision which may be life and death decisions, hearing evidence and arguments from applicants, not all of whom tell the truth but all of whom are under considerable stress.  It would not be unlikely if Tribunal members over time became somewhat jaded in the approach they take to the very important role conferred upon them by the Act but if so, they should endeavour to overcome this.  Her or his case deserves to be properly considered on its merits.  Without that consideration there will, in law, be no review.

17                  It is extremely important that in conducting a review members of the Tribunal show respect to applicants who appear before them.  Justice must not only be done but must be seen to be done.  The Tribunal hearing may, for many of those who appear before it, perhaps most, be the only contact they have with the Australian system of justice whether they are successful or unsuccessful.  To refer to friends of an applicant as a ‘whole pile of people’ could hardly lead to any confidence in an applicant that the Tribunal would approach the review in an impartial way.  Moreover, it is simply rude.

18                  The conduct of the present hearing left much to be desired.  Indeed, it will be necessary to consider whether the Tribunal member really conducted a review at all or merely went through the pretence of doing so.  While it can be accepted that there is a necessity on the part of the Tribunal member to obey the legislative requirement of a review that it be quick, this neither means that it is necessary to continue to cut off an applicant when the applicant wishes to say something nor to react in a manner which on paper is both rude and abrupt.

The applicant’s grounds of review

19                  Following amendment to the application there were three grounds of review upon which the applicant relied.  These were:-

(1)          That the Tribunal relied upon irrelevant considerations and failed to rely upon relevant considerations.

(2)          The Tribunal reached the conclusion on the question whether the applicant’s fear of persecution was well founded without having regard to all of the claims made by the applicant.

(3)          That the Tribunal decision was an improper and/or unreasonable exercise of the power conferred upon it by ss 414 and 415 of the Act.

20                  The first of these grounds was restated in a number of ways during the submissions so as to encompass both denial of natural justice and failure to conduct a proper review.  Hence it is, I think, appropriate in the circumstances to treat the grounds argued as if they were pleaded in a way consistently with what was argued.  There can be no prejudice to the respondent in so doing.

Ground One - Relevant or Irrelevant Considerations

21                  It may be accepted that the failure to take into account a relevant consideration or the taking into account of an irrelevant consideration would constitute a jurisdictional error entitling an applicant to have the Tribunal’s decision set aside.  So too, the failure of the Tribunal to afford to an applicant natural justice will be a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 47.  In both cases there will be jurisdictional error on the broader ground that there was, in the result, no review conducted as required by the Act so that the Tribunal did not act within jurisdiction.

22                  At the heart of the submission on behalf of the applicant is the refusal of the Tribunal to hear evidence from a witness as to the experiences of the applicant in China. 

23                  On behalf of the Minister it is submitted that an applicant to the Tribunal has no right to have evidence heard by the Tribunal and in any event the evidence could have made no difference to the outcome. 

24                  The submission that the Tribunal could arbitrarily refuse to accept relevant evidence is not one I find palatable when made in reference to a Tribunal required by statute to act according to substantial justice.  With respect to the submission I do not think it is one required to be accepted, having regard to the legislative scheme in the Act for the conduct of reviews by the Tribunal.  It is clear from the provisions of s 425(1) of the Act that the Tribunal must invite an applicant himself or herself to give evidence.  Section 426 then provides that the applicant must be notified of the effect of subsection s 426(2), namely that the applicant must give the Tribunal written notice that it wants the Tribunal to obtain oral evidence from a person.  While the Tribunal must have regard to the applicant’s wishes in the this regard, the Tribunal, by the section, is not required to obtain evidence orally or otherwise from a person named in the applicant’s notice.

25                  Proceedings in the Tribunal are inquisitorial not adversarial.  This may explain why Parliament has provided that it is the Tribunal and not an applicant to it who calls witnesses to give evidence.  On the other hand it may be that s 426 merely empowers the Tribunal to require a witness, at the applicant’s request to attend and does not preclude the applicant himself or herself calling a willing witness to give evidence on his or her behalf.

26                  The Tribunal has power, although it seems seldom to be exercised to summon a person to appear before the Tribunal to give evidence under s 427(3) and to administer an oath in taking that evidence.  The Tribunal may also authorise some other person to take evidence on oath under s 428 in which event that person has the same powers as the Tribunal would have.  Under s 429A evidence, whether of an applicant or some other person may be taken by telephone, closed circuit television or any other means of communication. 

27                  Section 426 is open to two possible interpretations.  The first is that s 426(2) is designed to ensure that only the Tribunal itself can call witnesses to give evidence and that the Tribunal can decide contrary to the wishes of the applicant what witnesses it will call.  On this view the Tribunal has an absolute discretion whether to do so.  The other view is that s 426(2) is concerned only with the power of the Tribunal to summon witnesses and is silent on the question of the right of an applicant to call relevant evidence to enable the Tribunal to carry out its duty to review a decision of the Minister.  I prefer the latter construction in the absence of clear language to the contrary.  It would require express and unambiguous language before Parliament it is to be taken to have excluded the right of an applicant to put evidence in the form of oral testimony of relevant facts before a decision maker (the Tribunal) charged ultimately with the making of a decision of such importance as the Tribunal is charged to make as a result of a review.

28                  Section 426(3) provides that the Tribunal ‘is not required to obtain evidence from a person named in the applicant’s notice’.  If Parliament had intended that the Tribunal was not required at all to take evidence from a person named in the applicant’s notice it would have been easy for Parliament to have expressed itself in that way.  The word ‘obtain’ suggests to my mind that s 426(3) relieves the Tribunal from an obligation itself to seek out a witness for the purpose of that witness giving evidence but is silent concerning the obligation of a Tribunal to listen to evidence which an applicant wishes the Tribunal to hear whether evidence is relevant in the proceedings.

29                  In my view, it is implied in Division 4 of Part 7 of the Act and indeed from the very obligation imposed on the Tribunal to entertain a ‘review’ that an applicant is entitled to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the Tribunal.  In the present case, evidence from witnesses as to the applicant’s practice of Falun Gong in Australia and nothing else would be irrelevant because it would cast no light on whether the applicant was a person who had a well founded fear of persecution within the meaning of the Convention if returned to China once the Tribunal accepted that the applicant was a practitioner of Falun Gong.  The Tribunal could thus properly refuse to hear that evidence. 

30                  The situation is different where the evidence is relevant.  The onus is on an applicant in a review of a decision arrived at where the Tribunal has refused to hear evidence to show that the evidence which the Tribunal refused to hear was relevant.  Unfortunately, the solicitor for the applicant did not seek to put on oath what the nature of the evidence, which the applicant wished to call.  All that is known of the proposed evidence is what appears from the transcript where the applicant herself indicated that the witness could testify that the applicant was a member of the Falun Gong in China, a matter which the Tribunal member indicated she accepted.  It is not sufficient for the applicant in proceedings before this Court on review to say, as the applicant’s counsel said from the bar table, that the witness ‘may well have provided appropriate corroboration to the applicant’s testimony’.  That may, perhaps, be the case but without evidence on oath it is impossible for this Court to know.  It may be that the proposed witness was Jinghui Lee who had known the applicant in China and who in a statutory declaration, presumably lodged with the Tribunal, spoke of activities in which they had both participated in China, including the incident in Tianamen Square when the applicant had been arrested.  The declaration spoke also of the subsequent arrest by the ‘610’ Office and the goaling of the applicant in the brainwashing centre.  If this was the evidence it went much beyond the mere statement that the applicant was a member of Falun Gong.  Indeed, the evidence would have been highly relevant and corroborative of everything the applicant had said.

31                  The problem which the Court faces where an applicant seeks to allege that the Tribunal refused to hear relevant evidence is that the Court must be satisfied that the evidence might have affected the outcome.  Without at least a general outline of what the proposed evidence could have been the Court can not reach that conclusion.

32                  The solicitor for the applicant in written submissions referred also to a letter from Mr Wei, a Chairman of the Far Lung Fo Xue Association of Australia, also filed with the Tribunal, in which Mr Wei stated that he had no doubt after an examination of the documents provided by the applicant that she had been persecuted in China and that what she said was true.  I can understand why the Tribunal took the view that the unsworn letter was of no weight.  The best Mr Wei could do was to give evidence that what the applicant had said was consistent.  That testimony is not particularly useful.  Clearly Mr Wei could not say whether the applicant’s story and claims were true.   The failure to have regard to Mr Wu’s letter could not constitute jurisdictional error.

33                  Under this same ground of review it is submitted that the Tribunal in its reasons had made no reference to the United States Department Annual Human Rights Report 2002 which report made it abundantly clear that neither leadership nor display in public were required to attract severe and persecutory reaction to Falun Gong believers from the Chinese authorities.  It is said that the failure to have regard to that evidence, relevant as it was, to dispel the conclusion of the Tribunal that only those who were leaders of Falun Gong were in danger of persecution was a jurisdictional error. 

34                 It is true that the report does make it clear that it is possible that persons other than those in leadership positions might suffer persecution.  The report reads relevantly,

‘Mere belief in the discipline (Falun Gong), without any outward manifestation of its tenants, has been sufficient grounds for practitioners to receive punishments ranging from loss of employment to imprisonment, and in many cases, to suffer torture and death.’

35                  As an example, the report summarised the case of Ms Fangying Zheng of Weifang City, Shandong Province who travelled to Beijing to unfurl a banner reading ‘Falun Dafa is good’ in Tianamen Square Ms [Zheng] was taken to a detention centre where she was ‘punched and shocked with electric battons…’ the report says.

36                  Ms Zheng went on a hunger strike to protest the torture, but the beatings continued.  After 18 days she was released and died from her injuries three days after returning to her home in Weifang city.

37                  Clearly the passage quoted, if accepted by the Tribunal, was supportive of the applicant’s case.  There was, on the other hand, country material before the Tribunal that supported the following passage from the Tribunal’s reasons:

‘Independent country information reports indicate the Chinese government’s campaign against FG had targeted for prosecution the leaders and organisers of the practice and those with some degree of influence or recognition.  Government authorities have questioned large numbers of FG practitioners in their efforts to identify leaders and organisers.  In many cases such questioning has involved periods of detention.  Early release is offered to those who cooperate, including by identifying those who had led them astray.’

38                  The Tribunal cites a document prepared by the Department of Foreign Affairs and Trade of 9 November 1999.  Later in its reasons the Tribunal cites an update of that report which again shows that it is leaders of the Falun Gong that are likely to attract the attention of the authorities whereas ordinary members participating in demonstrations are more likely to be lectured.  According to the report ordinary member of Falun Gong were unlikely to be the subject of particular attention by the authorities, in contrast to the leaders who were judicially prosecuted.  Other material to the same extent is cited by the Tribunal from Human Rights Watch and from Dr Penny at the Australian National University.

39                  While it can be said that failure on the part of the Tribunal to take any account at all of relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding.  It is open to the Tribunal to accept or reject evidence before it.  It is neither bound to give reasons for its rejection nor indeed to refer to the material it rejects.  The submission really seeks to prevail upon this Court to entertain a merits review and does not demonstrate jurisdictional error.

40                  But there is another difficulty which the passage cited by the Tribunal reveals and it goes to the heart of the applicant’s complaint.  That is that the Tribunal applied the wrong legal test in purporting to conduct the review of the respondent’s decision.  A person will fall within the definition of ‘refugee’ in the Convention where the person has a fear founded upon a real chance of persecution.  There will be a real chance even where the risk of persecution is well below a 50 per cent threshold, so long as the chance is one that is not remote or insubstantial or a far-fetched possibility.  The test to be applied is not one of likelihood.  There is an error of law in proceeding from evidence that it is unlikely that those who are ordinary members of the Falun Gong will be persecuted even although some have been, in fact, persecuted to a conclusion that this means there is no real chance of persecution unless the Tribunal concludes that the risk of persecution is merely remote or insubstantial.

41                  Finally under this heading, reference is made to the Tribunal refusing to listen to the applicant when she wished to explain why she was likely to be arrested if she returned to China, notwithstanding that she had not been arrested earlier when she had returned to China from Thailand.  The applicant sought to refer to the situation of an Australian citizen of Chinese origin who had returned to China.  The Tribunal member indicated she knew about that and did not want to hear about it.  It is unclear what precisely it was that the applicant wished to say or who the relevant Australian citizen of Chinese origin was for the applicant was given no chance to make her point.  But for the fact that the transcript indicates that the applicant referred to the relevant person as being male, it might be thought that the applicant was referring to the case of Nancy Chen, a practitioner of Falun Gong who was detained by the Chinese National Security Department when on a visit from Australia to China.  The story of Ms Chen appeared in information that had been put before the Tribunal in any event.

42                  There is a difficulty in the applicant relying on this matter by herself because the Court simply does not know what it was that the applicant wanted to say.  The applicant could obviously have filed an affidavit indicating what it was that she intended to say.  She did not.  It is not possible to determine whether what the applicant wanted to say and was not permitted to say was a matter of relevance.

43                  However, all these matters, when seen cumulatively, may indicate that in the circumstances the Tribunal simply did not undertake the duty imposed upon it by the Act to conduct a real review.  I shall refer to that matter after considering the remaining two grounds.

Ground Two – Failure to Regard the Applicant’s Claims

44                  In her application, the applicant made reference to an incident said to have occurred eleven days after her release from the detention centre when she was ‘kidnapped’ by the police who took her by van to the Taikang Police Station where she spent some twelve hours in icy conditions.  This incident preceded her being sent to brainwashing class.  In its reasons the Tribunal made the following comment concerning this claim:

‘The Tribunal has considered the applicant’s claim as to her allegation that she was kidnapped.  Although the causal nexus between this alleged act and the applicant’s claim is not clear, the Tribunal noted that the applicant made no mention in the hearing of her alleged kidnapping by the police on 9 February. 2001.  Her submission of 11/4/03 was largely a repeat of her earlier submissions on this point and to this extent was not helpful.  Because of this and he paucity of information available on this aspect of the claim in the applicant and no oral evidence available, the Tribunal has not given any weight one way or the other to this portion of the application.’

45                  At no time during the hearing did the Tribunal ever ask the applicant any question about this claim nor was the applicant given any indication that it was a matter of concern to the Tribunal.  It is submitted on behalf of the applicant that the reference to kidnapping was to be explained by the applicant’s bad English and that what was being referred to was something in the nature of an arrest without legal authority.  As to the significance of the incident on its face that would seem relatively clear in that it involved the applicant in being taken to a police station from whence, either immediately or shortly thereafter she was sent away to spend 40 days in detention.  The question how much weight the Tribunal should place upon some portion of the evidence is a matter for it and not for this Court.  It is not difficult to understand the applicant’s dissatisfaction with the way this matter was dealt with by the Tribunal in the passage to which I have referred.  However, I do not think that it can be said that the applicant’s claim was just ignored in such a way as to constitute jurisdictional error.  The claim was not ignored, it was just given no or little weight.  In my view, the present case is different from cases such as N1202/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2001)68 ALD 21 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 which considered the situation where the Tribunal had failed to exercise jurisdiction by not considering at all the case or part of the case made out by the applicant.  However this matter may assume greater significance when taken with all other matters the question is posed whether the Tribunal really conducted a review as it was obliged to do.

Ground Three – Improper and/or Unreasonable Exercise of Power

46                  Under this ground a number of points are made. 

47                  First it is submitted that the Tribunal had made a false analogy by reasoning that because there had been no difficulty in the applicant leaving China to go to Thailand, and the applicant leaving China to go to Australia, the Chinese government would have no interest in persecuting her upon her return.  There is no false analogy.  There is no jurisdictional error in the Tribunal adopting this process of reasoning.

48                  The second matter raised was said to be that the Tribunal acted perversely by concluding that the applicant’s knowledge of Lunyu and the demonstration of April 1999 was not sufficiently comprehensive, a matter on which the Tribunal had given no indication during the course of the oral hearing.

49                  It is not wholly clear to me why the applicant’s answers to the Tribunal as they appear on the transcript concerning Lunyu was unsatisfactory.  No explanation is given by the Tribunal member.  However, no jurisdictional error is shown by the Tribunal forming a conclusion covering the applicant’s knowledge of a matter significant to the Falun Gong believers.

50                  Finally under this heading it is submitted that the Tribunal’s conclusion that it would not accept what the applicant said unless it was able to support what was said by the country information, was not a conclusion open to the Tribunal.  The submission is that it was not open to a finder of fact to decline to accept evidence of an applicant unless the Tribunal found the applicant to lack credibility.  That may be so, but it is obvious that the Tribunal did form the view that the applicant’s evidence did lack credibility even if the Tribunal member did not say that precisely.  It was open to the Tribunal to accept or reject what the applicant said.  The Tribunal, indeed, rejected much of her evidence.  It preferred and it was entitled to prefer, country information to oral evidence which ran in contradiction to that country evidence.  No error of law is revealed in the submission.

51                  It is necessary to turn now to two further matters.  The first is a matter going to the validity of the certificate referred to in paragraph [9] of these reasons.  The second requires an evaluation of all of the matters raised to determine whether the Tribunal in fact conducted a review as required by the Act.

The Certificate

52                 In its reasons the Tribunal dismissed the Certificate produced by the applicant (a certificate that was corroborative of her detention because independent country information (‘ICI’), ‘could not locate any reference to an Article 24 of Regulations on Management Penalty of Peoples’ Republic of China.  In addition, the Tribunal could not locate any similar order used against FG practitioners which was posted to a detainee or allowed 60 days appeal – the usual appeal period being only 5 days.’

53                  In fact, had the Tribunal member search the Internet she would have located Article 24 of what is translated on the ChinaWe web site (www.chinawe.com) as ‘Regulations of the People’s Republic of China on Administrative Penalties for Public Security.’

‘Article 24:

(1)   knowingly harbouring, destroying or transferring stolen good, when the circumstances are not serious enough for criminal punishment, or knowingly buying stolen goods;

(2)    disturbing public order, endangering public interests, impairing another person’s health or swindling money by way of superstitious sects and secret societies or activities of feudal superstition, when the circumstances are not serious enough for criminal punishment;

(3)    in violation of the regulations on the administration of registration of public organization without having been registered or in the name of the former public organization after its registration being cancelled, or after the organization has been officially dissolved or banned, when the circumstances are not serious enough for criminal punishment;…’

54                  She would have seen that Article 45 of Administrative Punishment Law of the People’s Republic of China provides a system of administrative review or ‘administrative lawsuit’ available to people dissatisfied with punishment and have found that Article 9 of the Administrative Review Law actually provides that application for review is to be made within 60 working days of issuance of the penalty.

55                  The latter article is able to be viewed on the Chinese web site for the State Information Centre in Chinese (www.chinalaw.net).  I have not spent the time necessary to see whether an English version can be found on the World Wide Web.  This matter is merely a factual error and obviously not a jurisdictional error.  But its significance is greater than that in the present case.

56                  The Tribunal member did raise with the applicant her concern that she had been unable to find any Article 24 or any reference to 60 days appeal indicating that the appeal period ‘is strictly 5 days’.  The applicant asked for and was granted a short 5 minutes recess during which time she was instructed not to talk to her friends.

57                  On resumption of the hearing the Tribunal member somewhat brusquely said to the applicant:

‘MEMBER: Q.  The last question I asked you related to the inconsistency in your application with your photocopy and the translation which seems to bear no resemblance to any independent country information in regard to Article 24 that I have been able to locate.  You did have an adjournment.  Would you like to answer?

A.     I would say will you patient the reason for my explanation.

Q. I’ve been doing it all day.  I don’t see why I shouldn’t continue to do it. 

A. I would say that the detention order itself is illegal.  Therefore, the person who issued those detention order have to make up the law themselves and perhaps through the misunderstanding of translation that you take it seriously as true.’

58                  Not surprisingly the applicant was unable to explain how the certificate came to have false information on it when the information was in fact right.

59                  Ultimately the applicant just before the close of the hearing on 9 April sought time to make a further submission through her legal advisor.  The Tribunal commented that the application had been ‘in now for going on two years’.  The member said;

‘I am not going to allow you any further time, you’ve had more than enough time…Your legal adviser isn’t going to tell me anything seminal to this hearing other than what you’ve already told me.’

60                  Nevertheless, the Tribunal gave the applicant until 4 pm on Friday 11 April 2003 (two days) to put something in writing (although the Tribunal member was aware that the adviser had been too ill to attend the hearing on 9 April 2003).

61                  The applicant complained, with some justification that when she sought to give an explanation she was interrupted by the Tribunal member and not given a chance to explain.  Rather the applicant had ‘been given more than enough opportunity over and above what [the applicant] [was] entitled to’.

62                  The Tribunal member‘s attitude regarding this matter as in so many matters throughout the hearing would hardly inspire any applicant with the confidence that the Tribunal would approach the task of review with an open mind.

Was there a review?

63                  The Act confers upon the Tribunal the obligation on the application of an applicant to review decisions made by the respondent refusing a protection visa: s 414(1) and see s 411 of the Act.

64                  The Act does not contemplate that the Tribunal will merely engage in a pretence.  It contemplates that the Tribunal will in accordance with the Act take account of any evidence of the applicant and submissions which the applicant may make: s 425.

65                  What happened in the present case is, in my view, so extreme that the only conclusion open to me is that the Tribunal did not conduct a review at all.  It interrupted the applicant and did not permit the applicant to give explanations.  It refused the applicant the opportunity of calling witnesses.  In so far as the member appeared to be participating in a review at all she appears to have done so with a closed mind such that I would find she exercised bias in the sense used by the cases.

66                  The various matters, the subject of the individual submissions discussed when taken together with the transcript, leave me with only one conclusion and that is that the Tribunal member did not attempt a hearing which had the characteristics required by the Act, that is to say to be actually a review which is fair and in which the Tribunal reviews the decision refusing the applicant a protection visa acting according to substantial justice and the merits of the case.

67                  In my view, the Tribunal’s decision is vitiated with error such that it is no decision at all and must be set aside.  The application must be remitted to the Tribunal to be heard again by a Tribunal differently constituted.  The respondent must pay the applicant’s costs of the present application.

68                  I would further direct the Registrar of the Court to forward a copy of these reasons to the Principal Member of the Tribunal for his information.  It is to be hoped that what happened in the purported hearing in the present application is never repeated.

Associate:

Dated:              21 October 2003