Kimura, Joji v Minister for Immigration & Multicultural Affairs

[1997] FCA 1352

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG763 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOJI KIMURA Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	WILCOX, FOSTER AND EMMETT JJ
DATE:	24 NOVEMBER 1997
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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	NG763 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOJI KIMURA Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	WILCOX, FOSTER AND EMMETT JJ
DATE:	24 NOVEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an appeal against a decision of Tamberlin J, dismissing an application by the appellant, Joji Kimura, for review of a decision made by the Refugee Review Tribunal.  The Tribunal determined Mr Kimura did not have a well-founded fear of persecution, for reasons referred to in the Convention Relating to the Status of Refugees, if returned to his native Japan; and was therefore not a refugee within the meaning of that Convention. 

Mr Kimura appeared in person before us today.  He does not speak English and we appreciate this makes his task difficult.  However, Mr Kimura was assisted by an interpreter, Dr C. Naylor.  We are most grateful to her for that.  As a result, I think we fully understand the points Mr Kimura takes.  These points differ, to some extent, from the points put to Tamberlin J.

As I follow Mr Kimura's address, he puts four separate arguments.  First, he says he was unable properly to present his case to the Tribunal because of his mental condition.  I asked Mr Kimura if he could refer us to some expert evidence regarding his mental condition, or whether he could make good his complaint by reference to the transcript of the hearing by the Tribunal.  Despite the question being put more than once, Mr Kimura was unable to do this.   As it seems to me, there is no basis upon which the Court can say the hearing before the Tribunal denied Mr Kimura substantial fairness by reason of his mental condition.  A somewhat similar matter was raised with Tamberlin J; he also felt there was nothing in it.

Second, Mr Kimura says he possesses secret information regarding the AUM sect and arising out of his former membership of it.  He says this is a reason for having a well-founded fear of persecution.  I note, however, that the Tribunal was not satisfied Mr Kimura was ever a member of the AUM sect.  This was a finding of fact and I see no basis upon which the Court can interfere with it.

Third, Mr Kimura says the Japanese Embassy has become aware of the fact that he applied for a protection visa on the ground that he was a refugee.  Tamberlin J dealt with a similar submission and pointed out that a file memorandum indicates the Japanese authorities were not told the type of application Mr Kimura was making.  Even if it were otherwise, I note Mr Kimura merely says he would be “condemned” for criticising the Japanese Government.  He does not suggest he would be persecuted on political grounds.

Finally, Mr Kimura complains that the member of the Tribunal who conducted the hearing did not adequately explain to him the substance of the Convention.  The transcript before the Tribunal shows this complaint is wrong.  At pages 9 to 11 of the transcript, the member explained the substance of the Convention in simple, accurate and comprehensive terms. 

I see no basis for any ground of review under s 476 of the Migration Act.

I should add that, at the end of his submission, Mr Kimura sought an adjournment of the appeal.  He said he needed more time to investigate matters and get information but he did not detail the matters or information or explain how this would help him successfully challenge the Tribunal's decision. 

I see no justification for an adjournment.  It is important that refugee matters be dealt with as expeditiously as possible.  In my view the appeal should be dismissed.

FOSTER J:   Yes, I agree.  I have nothing to add.

EMMETT J:   I agree with everything that has been said by Wilcox J and I have nothing to add.

[There was discussion about costs.]

WILCOX J:   The order of the Court will be that the appeal be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:            24 November 1997

Appellant in person
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 1997