Applicant NADL of 2001 v MIMA

[2002] FCA 274

FEDERAL COURT OF AUSTRALIA

Applicant NADL of 2001 v MIMA [2002] FCA 274

APPLICANT NADL OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N1666 OF 2001

BRANSON J
14 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1666 OF 2001

BETWEEN:	APPLICANT NADL OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON
DATE OF ORDER:	14 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1666 OF 2001

BETWEEN:	APPLICANT NADL OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON
DATE:	14 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied to the Court for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal refused to grant the applicant a protection visa.

2. The application was filed in the court on 21 December 2001. The application is therefore governed by the new Part 8 of the Migration Act 1958 (Cth) (“the Act”) The decision under review is a “privative clause decision” within the meaning of s 474(2) of the Act. The Court’s jurisdiction in the matter is to be found in s 39B of the Judiciary Act 1903.

3. The grounds set out in the application appear to have been formulated in reliance on Part 8 of the Act as in force before 2 October 2001. The grounds are:

   1.The decision was induced or affected by actual bias of the officer.

   2.There was no evidence or other materials to justify the making of the decision.

4. The applicant arrived in Australia on 17 October 1998 on an Indonesian passport.  He applied for a protection visa on 7 November 1998 claiming to be a citizen of Indonesia and to have been born in Indonesia.  His application was supported by quite detailed claims of torture, harassment and abuse in Indonesia by reason of his being ethnically Chinese.

5. The applicant did not respond to a letter which invited him to attend for an interview before a delegate of the Minister nor did he attend the scheduled interview.  The post office confirmed that the letter containing the invitation to attend the interview had been received by the applicant.

6. The delegate was not satisfied of the truth of the applicant’s claims in  his application for a protection visa.  In particular the delegate was not satisfied that the applicant was a citizen of Indonesia.  On 16 September 1999 the delegate refused to grant the applicant a protection visa.

7. By his application to the Tribunal for a review of the decision of the delegate the applicant acknowledged that he comes in fact from the People’s Republic of China (“PRC”).  He explained that his original application was based on stories that he had heard when he was in Indonesia.  He said that because he thought that it must be illegal to enter Australia on a false Indonesian passport he had decided to keep his real identity secret to avoid “cruel punishment”.

8. By his application to the Tribunal the applicant made the following claims:

   (a)that he was a pious Christian belonging to the “Shouting denomination”;

   (b)that the Shouting denomination has been classified as a counter revolutionary religious organisation by the authorities of the PRC;

   (c)that he became a formal Christian in December 1992 when he was baptised in an underground church and that since then he had devoted everything to “the God” including organising bible study, spreading the gospel and making contribution to the God;

   (d)that in 1993 he was personally subjected to troubles for the first time owing to his religious activities.  He said that one day when he had a religious gathering with some religious brothers and sisters in a small village they were surrounded by policemen and all the participants in the gathering were arrested and detained and that he was detained for a month and beaten by police.  He further said that after he was released he was questioned by the local police station many times and warned not to have any religious activities of Shouting denomination;

   (e)that he did not however give up his religious belief and continually organised underground religious practice;

   (f)that in 1994 he set up a bible study group in his hometown to spread the gospel among ordinary people and a group gradually developed of over sixty members.  He said that in the end the group came to the special attention of the Government and in 1996 he was detained by the Public Security Bureau for the second time.  He claimed to have been detained for three months at the detention centre where he was subjected to mental and physical mistreatment.  He said that after he was released he began secretly to organise religious gatherings to promote his religious ideologies;

   (g)that in 1997 he organised members to protest against those leaders of the church who had been decided by the PRC authorities, as they wished to elect their own leaders.  He claimed that as a result he was arrested by the Public Security Bureau for the third time and without any normal legal procedures sent to a labour farm.  He said he was not allowed to seek any appeal and was not released until March 1998; and

   (h)that although he experienced many difficulties he did not give up his religious beliefs and activities and began to spread the gospel once again.  He said that he was often asked to join so-called political study and had to carefully plan his actions every time.  When his activities were discovered by the Public Security Bureau he said he had to “escape to the overseas in a short time”.

9. The Tribunal in its written reasons for decision noted the background to the application made to it by the applicant.  Under the heading, “Findings and Reasons” the Tribunal Member stated as follows:

   “I am prepared to accept that the applicant has been interested in Shouter worship and that he has attended some gatherings here and in China.  However, given his lack of knowledge of some basic facts of Christian worship, I am not satisfied that he had been involved to any significant extent with the group or with any other Christian group while in China and I am of the opinion that (despite his witness's kind words) he has not been candid about his status as an allegedly fervent and regular Shouter worshipper in Australia, given, again, his lack of knowledge of Christianity and his inability to remember the address of the Blacktown Church at which he had allegedly worshipped regularly since coming to Australia.  In these circumstances, I am not satisfied that he had been known to be a Shouter leader in China and detained and threatened by the authorities.   I am of the firm opinion that the applicant has falsely painted a picture of himself as a Shouter worshipper in order to boost an application for a protection visa.  The applicant is a person who is clearly prepared to adopt false positions to suit his ends.  I refer here to his use of false passports and his use of an entirely false set of Indonesian-related claims.  As I am not satisfied that he faced persecution in China I find that his decision to leave China was for reasons unconnected with the Convention, and that he had used false passports and alternating sets of claims in order to secure an immigration advantage when coming to Australia and in attempting to reside here.

   For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in China.  Even if the applicant were to genuinely take up Shouter worship in China on his return, I am not satisfied on the evidence currently before me that he would face a real chance of persecution, given DFAT’s advice that it is Shouter leaders who have been arrested and jailed, rather than ordinary worshippers.”

10. I have heard from the applicant at some length today.  I am satisfied that he is aggrieved by the decision of the Tribunal as he feels that the Tribunal Member should have believed his claims in their entirety.  He can think of no explanation other than bias to explain the Tribunal’s failure to accept his claims. 

11. It is an important part of the role of the Tribunal to form its own view of the credibility of the applicants who come before it.  Plainly there was material before the Tribunal upon which it could base doubts as to the applicant's credibility.  The Tribunal Member was entitled to test by questioning the claims made by the applicant.   It is not material that I may not have placed the weight that the Tribunal Member did on the applicant’s responses to certain questions put to him.  The approach adopted by the Tribunal does not suggest that the Tribunal approached the applicant’s case with a closed mind.  Nothing to which the applicant has pointed, or which can be identified from the material before the Court, demonstrates any actual bias in the Tribunal Member.

12. Even were the relevant law that which was in force before 2 October 2001 I could not be satisfied that the decision of the Tribunal should be set aside.  There was evidence and other material before the Tribunal sufficient to justify its decision.  As I have already mentioned, the allegation of actual bias cannot be supported.

13. Under the current law the difficulties facing the applicant in the circumstances of this case are even more severe. As I am satisfied that no legal error has been identified in respect of the decision of the Tribunal, it is not necessary for consideration to be given to the true effect of s 474 of the Migration Act.

14. The application is dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Associate:

Dated:             14 March 2002

The Applicant appeared in person
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 March 2002
Date of Judgment:	14 March 2002