Feng v Minister for Immigration and Multicultural Affairs

[2000] FCA 1469

FEDERAL COURT OF AUSTRALIA

Feng v Minister for Immigration & Multicultural Affairs [2000] FCA 1469

TANG FENG v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 686 of 2000

HILL J
11 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 686 OF 2000

BETWEEN:	TANG FENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	11 OCTOBER 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Tang Feng for review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa. The applicant alleges that the Tribunal’s findings are infected with bias. In addition, the applicant claims that the Tribunal’s decision should be set aside because there was no evidence justifying the making of it or the Tribunal member lacked jurisdiction to make the decision because of a communication breakdown through an incompetent interpreter or otherwise failed to comply with procedures required under s 430 of the Migration Act 1958 (Cth) (“the Act”).

2. The application is accompanied by an annexure which partially amplifies these grounds. 

3. Mr Feng is a citizen of the People’s Republic of China who arrived in Australia on 14 November 1998 and applied on 27 July 1999 for a protection visa.  His application was refused and he applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. 

4. The applicant has not appeared before me today notwithstanding that there is evidence on affidavit before me that he was notified of the hearing (an initial hearing date having been altered) and had received copies of the normal documents which were filed with the Court pursuant to the practice direction dated 25 June 1998. 

5. The Tribunal’s decision commences, as is not unusual, with a summary of the relevant case law concerning article 1A(2) of the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).  I am unable to detect any error of law in that discussion. 

6. Essentially the Tribunal rejected Mr Feng’s claim to be a refugee because it did not believe the evidence which he gave.  The basic ground for the Tribunal not believing that evidence was that there were considerable discrepancies between what was contained in an original written statement in support of the application and the evidence which Mr Feng gave before the Tribunal.  Mr Feng sought to explain the discrepancies by saying that the mistakes had all been made by the person who assisted him to complete the original statement.  It is perhaps unfortunate that he did not seek to have his adviser give evidence of what Mr Feng told the adviser when the original material was prepared.  Of course it may be that had he done so the adviser might not have corroborated his story.

7. The Tribunal also rejected some of the applicant’s evidence on the basis that it was not plausible. Ultimately the Tribunal noted it was not satisfied that Mr Feng had a genuine fear of persecution for a Convention reason. It was fortified in this conclusion by the fact that Mr Feng had come to Australia originally in 1997 but had returned to China because his mother was ill. Findings of fact are matters for the Tribunal and I can see in the Tribunal’s reasons no ground of review under s 476 of the Act. In particular I cannot see that the Tribunal made any legal error in arriving at its decision.

8. It appears from the Tribunal’s reasons that Mr Feng told the Tribunal that he thought the Tribunal member was biased and that any explanations Mr Feng made to the Tribunal were futile.  It is true, as the Tribunal records, that Mr Feng referred to an inability to communicate with the Tribunal member and to misunderstandings which he said occurred between Mr Feng and the Tribunal.  However, there is nothing on the face of the Tribunal’s reasons that in any way suggests that the Tribunal member was actually biased as Mr Feng complains. 

9. In the circumstances, I would affirm the Tribunal’s decision and dismiss Mr Feng's application for review, with costs. 

10. In case Mr Feng’s absence from the hearing today might be a result of some transport difficulty preventing him from appearing at the time appointed for the hearing, I will stay the orders I make until 4.00 pm today.  In the event that Mr Feng should turn up at a later time, I will be available, subject to the convenience of counsel for the Minister, to hear any submissions he may wish to make personally, before the orders I will now make take effect.

11. I would affirm the decision of the Refugee Review Tribunal dated 12 May 2000, which affirms the decision of the delegate for the Minister, that Mr Feng not be granted a protection visa.  I would dismiss the application and order Mr Feng to pay the Minister’s costs of it. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             11 October 2000

Counsel for the Respondent:	V Hartstein
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 October 2000
Date of Judgment:	11 October 2000