NAMQ v Minister for Immigration

[2004] FMCA 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMQ & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 9

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China due to the practice of Falun Gong – whether the Tribunal proceeding was fair, whether the Tribunal applied the correct principles – possible factual error in the Tribunal decision – no reviewable error found.

Migration Act 1958 (Cth), ss.91R, 417

Minister for Immigration v Guo (1997) 191 CLR 559
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Sinnathamby v Minister for Immigration (1986) 66 ALR 502

First Applicant:

Second Applicant:

NAMQ

NAMR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1217 of 2003

Delivered on: 29 January 2004

Delivered at: Sydney

Hearing date: 27 November 2003

Judgment of: Driver FM

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1217 of 2003

NAMQ, NAMR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 14 February 2003 and handed down on 6 March 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The applicants are a husband and wife from China.  The applicant wife claimed a protection visa on the basis of a fear of persecution arising out of her practice of Falun Gong.  The applicant husband claimed a protection visa by reason of his association with his wife.

2. The applicants arrived in Australia from China on 8 March 1997.  They lodged an application for protection visas on 10 August 2001, which was refused by the delegate on 20 September 2001.  The applicants then applied to the RRT for review of that decision. 

3. The applicant wife claimed that, although she and her husband had left China before the government had proscribed Falun Gong, she had lost her allocated house and her employment and that when she approached the Chinese Consulate-General in Sydney to extend the applicants’ passports, they were required to write letters of confession and repentance.  They refused to do so and their passports were not extended. 

4. The RRT found that the applicant wife had never been involved in Falun Gong in China and that she had adopted the practice of Falun Gong in Australia in 2001 to enhance her claims to a protection visa: court book, page 225.9.  The presiding member reasoned that if the applicant had begun to practice Falun Gong in China in 1992 as she claimed, then it…