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

[2003] FCA 511

FEDERAL COURT OF AUSTRALIA

NAPU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 511

NAPU of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1218 of 2002

JACOBSON J
26 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1218 of 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAPU of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	26 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The appeal be dismissed.

2The appellant pay the respondent’s costs of the proceedings. 

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	N1218 of 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAPU of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	26 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of Driver FM delivered on 4 November 2002 dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 1 July 2002.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.

2. The appellant is a citizen of the People’s Republic of China (“PRC”).  He claimed to have a well-founded fear of persecution on the grounds of his political opinions.

   Decision of the RRT

3. The RRT found that the appellant was employed in a management position by the “People’s Daily” newspaper in the PRC for over ten years until his resignation in 1993.  The RRT described the newspaper as the “official mouthpiece” of the Communist Party (“the CCP”).

4. The RRT accepted the appellant’s claim that he was present at the Tiananmen Square demonstrations in April – June 1989.  However, the RRT seemed to be of the view that the appellant was considered to be a “minor player” in the protests.  The RRT considered that, although the appellant suffered minor discrimination after 1989, he was not perceived to be a political activist nor to pose any serious threat to the CCP. 

5. In particular, the RRT found that the appellant was not subjected to treatment amounting to persecution because of his political opinions as a result of his participation in the 1989 protests during his period of employment with the People’s Daily. 

6. The RRT accepted that the appellant was in private business from 1993 until 1996 but it rejected his claim that during this period he was subject to demands for bribes because of his political opinions.

7. The RRT stated that the appellant had given evidence of strong political views and of the need to address corruption in China.

8. The RRT did not accept that his right to express his political opinions was denied “to the extent that this was persecution in itself”.

9. In rejecting the appellant’s claim that he had a well-founded fear of persecution, the RRT had regard to the fact that the appellant left the PRC legally in 1996 using a passport in his own name.

10. The RRT also had regard to the fact that the appellant did not apply for asylum in Australia until about five and a half years after he arrived here and, only then, when he was apprehended by officers of the Department for overstaying his entry visa.

11. In addition to his activities in the PRC before his departure, the appellant relied upon his activities in Australia.  He placed emphasis in this regard upon his actions while he was in immigration detention from February 2002.

12. This aspect of the appellant’s claim was submitted to the RRT in a number of documents.  The effect of the documents was that the appellant had been publicly identified with complaints about conditions in the Villawood Detention Centre where he was, and still is, in immigration detention.

13. It is unnecessary to set out the details of the documents which were referred to in the RRT’s decision under the subheading “Written Submissions to this Tribunal”.  The documents included a petition and a list of names and signatures including the appellant’s signature as well as a copy of an article which seems to have been published in a Chinese language newspaper.

14. The appellant also addressed the RRT orally on events at the immigration Detention Centre and as to its effect upon his claim.  He said that staff from the PRC Consulate in Sydney had visited the Detention Centre while detainees were protesting.  He submitted that the Consular staff would regard him as a trouble-maker. 

15. The RRT dismissed this aspect of his claim in the following paragraph of its reasons:-

    “While I am satisfied that he has been publicly identified, in the Chinese press in Sydney and possibly to an official or officials from the PRC Consulate in Sydney, as the leader of a protest against conditions facing detainees at an immigration detention centre in Sydney, I do not accept that his actions while in detention might lead to a political opinion being imputed to him by the PRC authorities.  I am satisfied that this is so, firstly, because he was not regarded as a political dissident in the years leading to his departure from the PRC.  Further, he has not been publicly involved in any political activities critical of the PRC authorities while in Australia.  Finally I consider that, because of his political inactivity, those authorities will almost certainly assume that he has applied for the protection visa solely to remain here and pursue his business activities, and not because of any political views he holds.  On the latter point I note that the independent evidence cited above consistently indicates that the returning PRC nationals, whether they are believed to have sought asylum or not, are not subjected to any harsh treatment or serious penalties unless (as one source observes) they have “brought disgrace to the nation” (IRB 2000).  I am satisfied that (the appellant) does not fall into this category.”

    The Decision of the Federal Magistrate

16. Driver FM dismissed the application for judicial review on the ground that there was no error of law in the decision and reasons of the RRT.

17. The learned Magistrate stated at [7] that the difficulties which the appellant identified as to his treatment in the PRC were all matters of fact for the RRT. 

18. The Magistrate observed at [3] and [7] that the appellant appeared to seek a merits review and that it is well-established that this is not the function of the Court in an application for judicial review.

19. Driver FM noted at [5] and [7] that the appellant alleged bias and bad faith on the part of the RRT but the learned Magistrate noted that nothing was put in support of these assertions.

20. The Magistrate dismissed the claim about the appellant’s treatment in the Detention Centre at [6] upon the ground that he could see no connection between the allegations of mistreatment in detention and the decision of the RRT.

21. In summary, Driver FM was of the view which he expressed at [8] that even without the privative clause contained in s 474 of the Migration Act 1958 (Cth) (“the Act”), there was no basis to disturb the decision of the RRT.

    Decision on the Appeal

22. The notice of appeal asserted errors of law in the decision of Driver FM in very general terms.  The appellant expanded on this in a forty-four page written submission contained in a facsimile sent to this Court on 10 May 2003.  He also addressed me orally on the content of the written submissions.

23. The appellant’s principal submission was that the Federal Magistrate had erred in failing to take into account the appellant’s involvement in protests at the Villawood Detention Centre and that the conditions in the Detention Centre were said to be in contravention of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

24. The appellant’s submissions on this issue were summarised in the following paragraphs of a document headed “Submission at the full federal court on Monday 19 May 2003” which formed part of the forty-four page facsimile:-

    “4.That the Federal Magistrate Court did not challenge the failure of RRT to ask relevant questions about whether my criticisms of the Australia Government would cause me prsecution in China.

    5.That the Federal Magistrate Court did not chalenge the failure of RRT to get more detailed and thorough counting advice about China persecuting me, about my activities in China, about my activities in Australia.

    6.

    The Federal Magistrate Court ignored the relevant material about Immigration Detention Center and the complaints to the Commonwealth Ombudsman about my treatment in detention.”

    
    
    

25. The facsimile included an affidavit which, in large measure, repeated the contents of the six paragraph document.  It also included a request to submit further evidence on the appeal which related to complaints which he had made to the Commonwealth Ombudsman about his treatment in detention and the Ombudsman’s investigations of the complaints as well as further newspaper reports of the appellant’s articles about the cruelty of mandatory detention.

26. In my opinion, nothing which the appellant put to me in his oral or written submissions indicated any error on the part of the Federal Magistrate in finding that there was no connection between the appellant’s treatment in immigration detention and his claim to have a well-founded fear of persecution if he is returned to the PRC.

27. There was nothing to suggest that the RRT failed to ask any relevant questions about whether the criticisms of the Australian Government would give rise to a fear of persecution in the PRC.

28. In order to have any basis for making good that proposition, it would, at the very least, have been necessary for the appellant to put a transcript of the hearing in the RRT before the Federal Magistrate.  He did not do so, as he conceded before me.  The fact that he filed written submissions on the issue does not provide an answer to his failure to put in evidence a transcript of the hearing. 

29. Nor, for the same reason, did the appellant make good his submission that the Federal Magistrate “did not challenge the failure of the RRT to get more detailed and thorough counting advice about China persecuting me ---”.

30. Indeed, I do not consider that the RRT had any obligation to obtain any such advice.  This ground of appeal is, in my view, an attempt to challenge the RRT’s factual findings.  It is well established that this is not a proper ground of review and that it reveals no jurisdictional error.

31. The appellant’s written submission that the Federal Magistrate “ignored the relevant material about immigration detention centre and complaints to the Commonwealth Ombudsman” was really a submission that the Magistrate should have taken into account what the appellant said about these questions.

32. However, I see no error in the approach taken by the Federal Magistrate, namely, that he could see no connection between these allegations and the RRT’s decision on this question as set out in the passage which I have quoted at [15] above.

33. I accept the submissions of counsel for the Minister that the additional evidence which the appellant sought to introduce about the issue of his detention should not be admitted because it deals with matters which occurred after the decision of the RRT.

34. In any event, even if the evidence was admitted, it would not make good any claim to error on the part of the Federal Magistrate or the RRT because, as I have indicated, it seems to me that the Federal Magistrate was correct in his conclusion that there is no connection between these allegations and the rejection of his claims by the RRT.

35. None of the other matters put by the appellant in his oral or written submissions demonstrates any error in the decision of the learned Magistrate.

36. On 23 May 2003, the appellant faxed to my chambers a copy of a letter dated 28 April 2003 which he appears to have sent to the Commonwealth Ombudsman.  I have read the letter.  It does not alter the views expressed above.

Orders

1. It follows that I propose to order that the appeal be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date                26 May 2003

The appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 May 2003
Date of Judgment:	26 May 2003