NADF v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1569

FEDERAL COURT OF AUSTRALIA

NADF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1569

NADF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1152 of 2002

SACKVILLE J
SYDNEY
16 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1152 OF 2002

BETWEEN:	NADF of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	16 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s 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	N 1152 OF 2002

BETWEEN:	NADF of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	16 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application seeking judicial review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 8 October 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) made on 28 September 2001 to refuse to grant the applicant a protection visa.

2. The applicant has appeared without legal representation. The application to this Court does not specifically invoke s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”), but I shall treat it as having been made pursuant to that provision.

3. The history of the matter is as follows.  The applicant is a national of the People’s Republic of China (“PRC”) , who arrived in Australia on 14 August 2001.  Within two days, on 16 August 2001, he lodged an application for a protection visa.  Under the heading “Your Reasons for Claiming to be a Refugee” the applicant circled “Other Reasons”, rather than any of the five grounds recognised under the Convention relating to the Status of Refugees (“Convention”).  The application was accompanied by a notice to the applicant from his migration agent stating that the applicant had been advised that his application had no prospects of success, but that he had nonetheless directed his adviser to file the application.

4. The application was also accompanied by the translation of a statement signed by the applicant.  The substance of the statement was that the applicant was an officer of a Chinese corporation which had a business relationship with a company in Chile.  The applicant went to Chile for the purpose of arranging an investment in a hotel.  The Chinese corporation apparently sent money to the Chilean company.  It, however, terminated the agreement and the money could not be recovered by the Chinese corporation.  The applicant stated that he feared that he would be “thrown into prison” if he returned to the PRC.

5. On 28 September 2001, the delegate refused the application for a protection visa.  The delegate did so on the ground that the applicant had not indicated that he had a well-founded fear of persecution arising from any of the Convention reasons of race, religion, nationality, member of a particular social group or political opinion.

6. On or about 1 November 2001, the applicant applied to the RRT for review of the delegate’s decision.  The application form gave as the address for correspondence that of the migration agent.  The application indicated that a copy should also be sent to the applicant himself at a specified address in Campsie.  The application to the RRT was accompanied by a letter, the substance of which was in identical terms to the statement previously submitted by the applicant.

7. On 20 August 2002, the RRT sent a letter to the applicant requesting additional information in connection with his claim.  The letter requested, among other things, advice as to the applicant’s reasons for seeking review of the delegate’s decision and further details of his claims.  The letter was sent both to the nominated address for service and to the applicant’s own address.  The invitation specified that the information was to be provided in writing by 12 September 2002 and that if the additional information was not provided by that date the RRT might make a decision without further notice.

8. On 12 September 2002, the RRT received a letter from the applicant’s migration agent stating that on receipt of the letter of 20 August 2002, he had informed his client immediately, but had only been able to obtain information concerning the new residential address on the day he (the agent) had sent the letter to the RRT.

9. On 13 September 2002, the RRT prepared its decision, although it was not handed down until 13 October 2002.  The RRT, in its reasons, referred to the relevant sections of the Migration Act 1958 (Cth) (“Migration Act”), as follows:

   “424(1)       In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)       Without limiting subsection (1), the Tribunal may invite a person to give additional information.

   424C   (1)       If a person:

   (a)is invited under section 424 to give additional information; and

   (b)does not give the information before the time for giving it has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

   425(1)       The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)Subsection (1) does not apply if:

   …
   (c)       subsection 424C(1) or (2) applies to the applicant.”

10. The RRT then said this:

    “Although the [RRT] is not compelled to proceed to a decision without offering the applicant a hearing in all cases where an applicant is invited under s 424 to give additional information and does not give the information before the time for giving it is past, the [RRT] considers that such a course of action is appropriate in this case.  The applicant has had ample opportunity to provide details of why he is seeking recognition as a refugee from China.  Furthermore, as the applicant did not respond to the [RRT’s] invitation, and as the [RRT’s] attempts to communicate with him have been unsuccessful, it may be inferred that further invitations to the applicant are very likely to prove fruitless.  Accordingly, the [RRT] has decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicant and without inviting the applicant to a hearing”.

11. The RRT noted that the applicant’s claims were “so vague and lacking in significant detail” that further information had been requested.  That information had not been forthcoming, notwithstanding that the applicant had been advised of the letter of 20 August 2002 by his migration agent.  In the absence of any further material, the RRT was unable to be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

12. The application filed in this Court does not specify any grounds of review that appear to have any relevance to the position of the applicant.  The grounds appear simply to have been copied from another application involving a different applicant from the PRC.

13. The applicant did not file any written submissions.  When asked whether he wished to put any oral submissions in support of his application for review, the applicant declined the invitation.  Accordingly, he has not advanced any basis for finding jurisdictional error on the part of the RRT that would, independently of the privative clause (s 474(1) of the Migration Act), provide the basis for relief under s 39B of the Judiciary Act.

14. I should add that I am unable to discern, on the material before me, any basis for holding that the RRT committed jurisdictional error.  Even if the applicant’s claims were taken at face value they would not establish that he fears persecution in the PRC for a Convention reason.

15. In any event, there is nothing to suggest that any of the so-called “Hickman conditions” were not complied with by the RRT. Section 474(1) of the Migration Act would therefore preclude the application for judicial review succeeding in this Court.

16. The application must be dismissed, with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:            16 December 2002

The applicant appeared on his own behalf.

Solicitor for the Respondent:	Ms S Hanstein appeared on behalf of Blake Dawson Waldron
Date of Hearing:	16 December 2002
Date of Judgment:	16 December 2002