NAOI of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1232

FEDERAL COURT OF AUSTRALIA

NAOI of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1232

NAOI OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 685 of 2002

BRANSON J
1 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 685 of 2002

BETWEEN:	NAOI OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	1 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 685 of 2002

BETWEEN:	NAOI OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	1 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision that the applicant not be granted a protection visa. 

2. The applicant entered Australia on 21 April 2001 as part of a tour group on a visitor visa valid for 14 days.  She separated from the tour group in Sydney.  The day before her visitor visa expired she applied for a protection visa.  She was assisted by a migration agent.

3. On 7 June 2001 a delegate of the respondent refused to grant the applicant a protection visa.  The applicant sought review of that decision.  On 10 May 2001 the Tribunal conducted a hearing.  The applicant was on that occasion, as she was today, assisted by a Mandarin‑English interpreter. 

4. The applicant claimed before the Tribunal to fear persecution in the People’s Republic of China (“PRC”) by reason of her religion and her political opinion.  She claimed an affiliation with the Falun Gong movement.

5. The Tribunal found that the applicant is a national of the PRC who was able to leave China legally and without difficulty.  The Tribunal concluded:

   “… that the Applicant’s unimpeded departure from the PRC is strong evidence to the effect that the authorities there had no interest in her for, as indicated in her claims and in independent reports alike, the PRC authorities are very strict regarding provision of passports and control of departures from the country.”

6. The Tribunal found that the applicant’s evidence about her introduction to Falun Gong and her subsequent involvement with that movement was deeply confused and inconsistent.  The Tribunal formed the view that:

   “… the Applicant presented as a witness who had undergone various stages of coaching on the facts at various times but had forgotten much of it, only to remember some of what she had forgotten when prompted by something raised with her at the Tribunal.”

7. The Tribunal concluded the applicant had fabricated all of the evidence linking herself and her family with Falun Dafa and the Falun Gong movement in the PRC.

8. Written submissions, which were apparently prepared by the applicant’s migration agent, were read to the Court by the interpreter.  The submissions asserted that the Tribunal overlooked certain claims made by the applicant.  The assertion is unjustified.  The Tribunal in its written reasons for decision refers expressly to the claims referred to in the written submissions, namely the original claims as made in her application for a protection visa and to the claims made in support of her application to the Tribunal for a review of the decision of the delegate of the Minister.  The Tribunal found that the details contained in these respective claims were significantly inconsistent.  Further, the Tribunal concluded that the applicant’s oral evidence before the Tribunal was not capable of being reconciled with her claims as earlier advanced.

9. The Tribunal also gave consideration to the applicant’s claims to have been involved with Falun Gong in Australia.  The Tribunal concluded:

   “The Applicant’s limited activities and lack of familiarity with the movement’s exponents in Sydney reveal a very perfunctory level of involvement, such that the Tribunal cannot conceive that she would be regarded by the PRC authorities as an activist member even had they accounted for her presence at one or a few gatherings.  The Applicant is still only 18 years old and, to many intents and purposes, almost still a child.  She is not highly educated.  She is no longer a student.  It would be very difficult for her to be construed by authorities as a person capable of influencing the masses.”

10. The Tribunal was satisfied that the applicant’s claimed fear of persecution is not well founded.  It was satisfied that the applicant does not face a real chance of Convention related persecution in the PRC. 

11. In my view, no basis upon which the decision of the Tribunal is open to review has been identified.  The decision of the Tribunal is in reality based entirely on its view of the applicant’s credibility.  In a case of this kind in which an assessment of credibility is made on the bases of conflicting claims and an assessment of the applicant’s presentation at a hearing, the assessment of credibility is entirely a matter of fact for the Tribunal.

12. The order of the Court is that the application be dismissed.  Although the Tribunal apparently thought otherwise, it appears that the applicant has not attained the age of eighteen years.  In this circumstance I do not consider it appropriate to make an order that she pay the costs of the respondent.

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

Associate:

Dated:            3 October 2002

Counsel for the Applicant:	The applicant was self represented
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 October 2002
Date of Judgment:	1 October 2002