Case: Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: considered
Chief Federal Magistrate was alleged to have erred in failing to grant constitutional writ relief or prerogative relief on the following bases; first, that the Tribunal had committed a jurisdictional error in failing correctly to identify the appellant's claims and to apply the decision in Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. Secondly, that in reaching its conclusion the Tribunal failed to give the appellant a notice in writing under s 424A(1) of the Migration Act 1958 (Cth) of information which it took into account which was not information that fell within an exception found in subs (3) of that section. The information was characterised in two ways; first, that the appellant in her protection visa application had not made clear to the Tribunal how she would practice Falun Gong if she returned to China; and secondly, that while she had said that she had a fear of persecution, on the other hand she had offered very little in support of that. Each type of information was said to be information within the meaning of s 424A(1) in the manner I will explain in more detail shortly. The third ground was that the Tribunal had erred in the exercise of its discretion under s 426A when it failed to consider making contact with or contacting the appellant after she had failed to attend a hearing in circumstances where previously she had advised the Tribunal that she did intend to attend. The appellant had arrived in Australia in February 1997. In August 2000 she had lodged an application for a protection visa with the Minister. A delegate of the Minister refused to grant her a protection visa in September 2000 and she applied for a review of that decision on 3 October 2000. The basis of her claim was set out in a statement which she made in the application for the visa. She said that she had become a practitioner of Falun Gong in May 1998 in Australia. She pointed to the fact that as far as she knew, all Falun Gong practitioners suffered persecution in China and that many of them had been jailed, many detained and those who might not be detained or arrested could be suffering mentally from discrimination and could have been discriminated against by the Chinese authorities in their employment or through some forms of administrative punishment. In her claims she explained that she attended a Falun Dafa Australian experience sharing convention in May 1998 and thereafter became attracted to the practice of Falun Gong. She said that she claimed to have gone to Darling Harbour every Saturday and that she had read books by a master of Falun Gong and obeyed the other laws of that set of beliefs. She claimed that by practising Falun Gong her health became better and she had received mental cultivation and enlightenment. She also claimed to have attended another Falun Dafa Australian experience sharing conference in May 1999 and then in May 2000, to have participated in what she said was the world's first Falun Dafa day in Australia. On that occasion she said that with approximately 300 other practitioners she had walked from Hyde Park in Sydney to Darling Harbour and had held up banners with laudatory statements about Falun Dafa. In Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 489 [40] McHugh and Kirby JJ said: 'Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, a person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.' The real problem in this case is that the appellant made claims that she was a Falun Gong practitioner, that she wished to practice if she were to return to China and that she would be placed at risk. But she had failed to satisfy the Tribunal on the material she placed before it of the way in which she was proposing to practice if returned, so that it could be apparent whether or not she would be put in a position on either of the two horns of the dilemma which she presented to the Tribunal or of being a person who would be forced to modify the way in which she practised her beliefs to escape coming to the attention of the authorities. While other decision makers may have viewed her claims differently from the way in which the Tribunal did, it was for the Tribunal to be satisfied of them or not. I see no error in the way in which it exercised its function of review that affected the jurisdictional foundation on which the Tribunal proceeded. I am of opinion that the Tribunal did look at what has been called the dilemma, albeit without expressly identifying it in the passage to which I have referred, in which it ultimately said that it was not clear how the appellant would practice Falun Gong were she returned to China and, therefore, it could not be clear to the Tribunal whether she would be affected at all and, if so, in what manner.