NAMQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1674

FEDERAL COURT OF AUSTRALIA

NAMQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1674

NAMQ & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 156 of 2004

HILL J
13 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 156 OF 2004

BETWEEN:	NAMQ & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	13 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent minister’s costs of the appeal.

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 156 OF 2004

BETWEEN:	NAMQ & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	13 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. The appellants appeal from the decision of a Federal Magistrate (Mr Driver FM) dismissing the appellants’ application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs refusing the grant to them of a protection visa (the “Minister”).

2. The Tribunal's decision was given on the basis that the Tribunal did not accept the credibility of the appellants, and particularly the appellant wife. The Tribunal was of the view that the claim by the appellant wife that she had a well-founded fear of persecution by virtue of her association with the Falun Gong movement in Australia and in China had been concocted. It found that the appellant had engaged in Falun Gong activities in Australia with the sole purpose of enhancing, and strengthening, a claim for refugee status and accordingly, under section 91R(3) of the Migration Act 1958 (Cth), disregarded and gave no weight to her claim to fear harm upon return to the People's Republic of China because of her involvement in Falun Gong.

3. The appellant husband claimed to fear persecution in the People's Republic of China because of his relationship to his wife and by reason of being a member of the particular social group, namely, his family.  The finding of adverse credibility on the part of the wife obviously affected the claim in respect of the husband, and a claim that the husband had been the subject of both arrest and some physical violence upon returning to China was not accepted.

4. The appellants’ application for judicial review was based on a number of grounds.  The most important for relevant purposes being that the Tribunal had denied to the appellants natural justice or had failed to treat the appellants fairly.  Directions hearings were held and orders were made that the appellants file and serve evidence upon which they proposed to rely, together with written submissions, prior to the hearing which was set for 27 November 2003.  The appellants filed no evidence nor for that matter did they file any written submissions.

5. According to the appellant wife who spoke for both her husband and herself during the appeal before me the Magistrate gave her the opportunity to make some oral submissions.  However, towards lunch time, although she had not finished, it became necessary to adjourn the hearing.  At the time of the adjournment when the appellant wife indicated, at least to me, that she had not concluded her oral submissions the learned Magistrate made orders which as they appear on the Magistrates Court file were as follows:

   1.   The applicant is to file and serve on the respondent any further written submissions no later than 12 December 2003.

   2.   The applicant is to file and serve on the respondent a written transcript of the RRT hearing no later than 12 December 2003.

   3.   The respondent is to file and serve any response to the applicant's further written submissions and transcript in the form of written submissions no later than 24 December 2003.

6. There is no suggestion on the court file that the appellants in any way objected to the orders that were made.  In due course the appellants filed on 12 December 2003 an outline of submissions.  No attempt was made to file a transcript of the Tribunal's proceedings.  The outline of submissions made the point that the Tribunal had failed to observe natural justice and gave what at least purported to be extracts from the transcript said to support the submission.

7. The learned Magistrate rejected the submission.  Relevantly the learned Magistrate said (at paragraph 9 of his reasons) as follows:

   Nevertheless at the hearing before me, the applicant wife asserted that procedural unfairness would be apparent from a reading of the transcript of the RRT hearing.  In the circumstances, I gave the applicant wife the opportunity to submit a verified transcript.  I also gave her the opportunity to file additional written submissions about what was in the transcript.  The applicants filed additional written submissions on 12 December 2003.  However the applicants have not filed a transcript of the RRT hearing.  Rather the applicants’ additional written submissions contain what purports to be short extracts from the transcript.  These are unverified and the language of them makes me dubious about the accuracy of the purported transcriptions.  In any event, upon my reading of the extracts, there is nothing in them to substantiate a claim of procedural unfairness.

8. It was submitted before me that the learned Magistrate should have allowed the appellant wife to continue with her oral submissions.  It was said that the Magistrate had not made it clear to the appellant wife that it was necessary for her to file a copy of the transcript and, to the extent that she may have misunderstood, that this misunderstanding could have been cleared up in the event that there was the opportunity for further oral submissions.

9. It was later conceded by the appellants that the Magistrate had indeed said words to the effect of the orders as they appear on the court file.  That is to say, in particular, the order that there be filed a written transcript of the hearing.  It may well be, and it is not a matter I need to decide, that the appellants in some way misunderstood what the Magistrate had said.  Certainly it is not impossible to understand that unrepresented litigants do not necessarily appreciate the need to prove what happened at the proceedings before the Tribunal if it is alleged that the Tribunal did not afford to them natural justice.

10. The complaint as to what happened before the learned Magistrate clearly indicates no error of law on the part of his Honour.  The appellants had every opportunity to file such evidence as they needed to.  Indeed, they were told specifically that if they wished to rely upon procedural fairness before the Magistrate they should file a verified transcript of the proceedings.  Whether because of their own lack of understanding or otherwise, they did not do so.  That, however, involves no error of law on the Magistrate’s part.  If it matters, no attempt has been made, even until today, to file a verified copy of the transcript before the Tribunal.  I should say, that if one assumes that what is said in the appellants' outline of submissions on 12 December 2003 properly reflects what happened before the Tribunal, in its context, it is difficult to see that there was any denial of natural justice by the Tribunal in any event.

11. There being no error in the proceedings before the Magistrate demonstrated by the appellants, I have no alternative but to dismiss their appeal from the Magistrates Court.  Although other matters were dealt with in the decision of the learned Magistrate, those matters were not criticised before me and accordingly I have not considered whether any of them might raise some other error.  I would accordingly dismiss the appeal.

12. I order the appellants pay the respondent's costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             22 December 2004

Appellants appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 December 2004
Date of Judgment:	13 December 2004