NAQR v Minister for Immigration
[2004] FMCA 316
•20 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQR v MINISTER FOR IMMIGRATION | [2004] FMCA 316 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – whether failure to have regard to relevant considerations. |
Migration Act 1958
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
| Applicant: | NAQR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1401 of 2003 |
| Delivered on: | 20 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 April 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1401 of 2003
| NAQR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 April 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant arrived in Australia on 27 December 2001. On 29 January 2002 she lodged an application for a protection visa. It was refused on 26 April 2002 and she sought review by the Tribunal on 13 May 2002. On 7 March 2003 the Tribunal wrote to the applicant
informing her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone and inviting her to a hearing to give oral evidence and present arguments in support of her claims. The hearing was scheduled for
8 April 2003. The applicant accepted the invitation in a Response to Hearing Invitation form but did not attend the hearing. The Tribunal proceeded, as it is entitled to do, to make a decision without taking further action to allow the applicant to appear (s.426A Migration Act 1958).
The applicant, who is a national of China, claimed to fear persecution for reason of her religion in China. She claimed to have become a practitioner of Falun Gong for health reasons and to have been detained, mistreated and dismissed from her employment in a foreign trade company after attending a Falun Gong rally in Beijing in April 1999 and also after being mistaken for a Falun Gong leader in her work group. She claimed that she would be arrested and detained if she returned to China and would not be able to practice Falun Gong privately, although she acknowledged that she was not a Falun Gong leader and was able to leave China legally on a passport issued in her own name. The applicant made her claims in a statement annexed to her protection visa application, in a response to information provided by the respondent in relation to the situation of Falun Gong in China and in a written submission to the Tribunal dated 3 May 2002.
The Tribunal considered independent information in relation to the situation of Falun Gong in China and the treatment of Falun Gong practitioners, in particular evidence of differential treatment of leaders of Falun Gong and practitioners. It accepted that the applicant may well be a Falun Gong practitioner but found, on the basis of independent information before it, that she would be able to continue her practice as an individual and that this would not attract the adverse attention of the authorities. In reaching this conclusion the Tribunal had regard to the applicant’s claim that she had been released from detention as the authorities could not find any evidence of her association with Falun Gong, to the fact that she had departed China legally in December 2001 (two and a half years after the banning of Falun Gong) with a passport issued after her claimed detention and also to the absence of any evidence that the applicant had played a leading role in the Falun Gong movement in Australia. On the applicant’s evidence before it, including her successful employment history between 1980 and 1999, it could not accept that she would be unable to find work in the People's Republic of China.
The Tribunal indicated that had the applicant attended the hearing to which she was invited, it would have put such issues to her. The Tribunal was not satisfied that the applicant had a well founded fear of persecution.
In her application to this court the applicant claimed, without particularisation, that the Tribunal had ignored parts of her claims in the statement attached to her application for the visa and, in doing so, had ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation, and that it had made an incorrect finding that the applicant was not entitled to a protection visa and fell into jurisdictional error.
However, it is apparent from the Tribunal reasons for decision that it properly understood and considered the claims made by the applicant in connection with her application for a protection visa. The applicant has not specified that part of her claims said to have been ignored by the Tribunal. In the hearing today she merely took issue with the Tribunal conclusions, repeating her claims that she feared that if she returned to China she would suffer a serious threat and that she deserved the protection of Australia, there being no human rights protection in China. There is nothing in the material before the court to support the claim that the Tribunal ignored or failed to take into account relevant considerations or otherwise erred as contended. The applicant was unsuccessful before the Tribunal because of the view the Tribunal took of the facts, in particular its assessment based on independent country information, that her claimed fears were not well founded. The applicant did not attend the Tribunal hearing, despite being informed that the Tribunal was unable to make a favourable decision on the papers. The Tribunal findings were open to it for the reasons that it gives. The court cannot review the merits of the Tribunal's decision, MIEA v Wu Shan Liang (1996) 185 CLR 259 of 272.
As to the Tribunal treatment of the applicant's fears in relation to the future, the Tribunal properly considered the nature of the applicant's claims in relation to her intention to continue to participate in Falun Gong activities in its findings that she would be able to continue her practice as an individual and that there was nothing to indicate that she had had a leading role in the Falun Gong movement in Australia. No jurisdictional error is established on the material before the court. Accordingly, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been wholly unsuccessful and it is appropriate that she meet the respondent's costs. The respondent seeks that costs be set in the amount of $3,000. Bearing in mind the nature of this and other similar matters, I consider that this is an appropriate amount.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 20 April 2004
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