Chen v Minister for Immigration and Multicultural Affairs

[2001] FCA 847

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 847

Migration Act 1958 (Cth) s 476

WEI XING CHEN v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 221 of 2001

BRANSON J
SYDNEY
21 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 221 of 2001

BETWEEN:	WEI XING CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	21 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 221 of 2001

BETWEEN:	WEI XING CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	21 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Mr Chen, has applied for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). That decision is dated 25 January 2001. By its decision the Tribunal affirmed a decision that Mr Chen not be granted a protection visa. Mr Chen’s application for an order of review was amended by a later document filed with the court on 24 May 2001. Neither the application nor the amending document makes reference to s 476 of the Migration Act 1958 (Cth) (“the Act”), or to any of the grounds of review identified in that section.

2. The court’s records show, as Mr Chen acknowledges, that he has participated in the pilot scheme in the Federal Court which gives independent legal advice on the prospects of success of an applicant appealing from a decision of the Refugee Review Tribunal.  It appears from what Mr Chen has said today that he has also had access to some other legal advice.  However, Mr Chen appeared without legal representation on today’s hearing.  Despite the legal advice available to him, Mr Chen does not, it appears, have any understanding of the role of this Court on an application of this kind.  Mr Chen seeks to have this Court review on the merits his claim to be entitled to a protection visa.  The Court, as I have sought to explain to him today and on an earlier occasion, has no jurisdiction to do this.

3. Mr Chen’s claim to be entitled to a protection visa is based on his religion, namely Christianity.  He asserts that he faces a high risk of persecution, due to his religion, if he returns to China.  He also claims that he will be deprived of his basic human rights, including freedom of religion, if he returns to China.  The Tribunal accepted that Mr Chen had been dismissed from his employment as a doctor at a hospital because of activities related to his Christian religion.  However, the Tribunal concluded that the surrounding circumstances were such that the dismissal was reasonable and not discriminatory.

4. The Tribunal similarly found that Mr Chen’s inability to obtain alternative hospital employment, or to set up a private medical practice, was not the result of discrimination on the grounds of his religion.  The Tribunal concluded that Mr Chen was not under surveillance in China as he claimed, and that his religious profile is not such as to cause him to have a well-founded fear of persecution in his home city should he return there.  It noted that he was able to obtain a legal Chinese passport issued in his own name, and that he had departed China unhindered on two occasions.  The Tribunal was not satisfied that Mr Chen was of any interest to the Chinese authorities at the time when his passport was issued, or on the occasions when he departed China.

5. Mr Chen left China for Australia in April 1997 and has remained in this country since that time.  He does not suggest that anything that he has done since that time has given rise to a well-founded fear that he will suffer persecution for a convention reason should he return to China.

6. The findings made by the Tribunal are not open to challenge in this Court on any ground identified by the Migration Act. The conclusion that Mr Chen is not entitled to a protection visa flowed logically from those findings.

7. It has not been suggested that the Tribunal failed to observe any procedure that it was required by the Migration Act or regulations to observe. No other ground upon which this Court may review the decision of the Tribunal has been identified or is apparent from the material before this Court. The decision of the Tribunal is therefore affirmed.

8. There will be an order that the applicant pay the respondent’s costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   3 July 2001

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Date of Hearing:	21 June 2001
Date of Judgment:	21 June 2001