NARB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1217

FEDERAL COURT OF AUSTRALIA

NARB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1217

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 applied

NARB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N638 of 2003

JACOBSON J

27 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N638 of 2003

BETWEEN:	NARB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON
DATE OF ORDER:	27 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The Applicant pay the Respondent’s costs.

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	N638 of 2003

BETWEEN:	NARB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON
DATE:	27 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application of review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 29 April 2003.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the Applicant a protection visa.

2. The Applicant is a citizen of the People's Republic of China.  He arrived in Australia on 29 December 2001 and he applied for a protection visa on 8 January 2002.  The basis for the Applicant's claim for a protection visa was that he feared persecution in China on the ground of religion, namely that he is a practitioner of Falun Gong.  This gave rise to a claim on the ground of religious or political persecution.  The Applicant claimed that he supported the Falun Gong movement financially, that he assisted the publication of printed materials, and that he donated goods from his business to other Falun Gong practitioners.  He claimed that after the crackdown by the Chinese Government on the Falun Gong movement in July 1999 he was identified as a leader of the organisation and that he was responsible for planning to destroy the Chinese Government.  He claimed that as a result of this he was detained, interrogated, tortured and threatened with being charged for a political crime.  He claimed that his business was destroyed.  He also claimed that he obtained a passport through the payment of money and that he fled China in fear of his life and liberty.

3. In May 2002 the Applicant's visa application was refused by a delegate of the Minister.  Prior to reaching a decision the Delegate wrote to the Applicant advising him of relevant information in the Department's possession concerning the practice of Falun Gong in China and also advising him of the Chinese Government's attitude towards practitioners of Falun Gong.  The Delegate invited the Applicant to comment on the information and to reply to issues which the Delegate raised concerning the Applicant's claims.  The letter was dated 22 March 2002.  The Applicant did not reply to the letter.  On 13 May 2002 the Applicant applied to the RRT for a review of the decision of the Delegate.

4. In answer to a question in the application form which asked the Applicant to say why he considered himself to be a refugee, the Applicant merely stated "please see my file in DIMA" (sic).  On 14 January 2003 the RRT wrote to the Applicant advising him that it had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone.  The RRT invited the Applicant to attend a hearing before the RRT on 7 April 2003, the Applicant responded to the notice by indicating that he did wish to come to the hearing.  However the Applicant did not attend the hearing nor did he contact the RRT to explain his failure to attend.  The Applicant provided no written submissions or other documents to the RRT.

5. In its decision and reasons the RRT stated that it was not required to accept uncritically any and all of the allegations made by the Applicant.  The RRT cited various authorities to support this proposition including a decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. The RRT referred to the fact that the Delegate had alerted the Applicant to the Delegate's concerns about country information and about the Applicant's credibility. The RRT stated that it shared the Delegate's concerns about the Applicant's claims. The RRT stated that there was nothing to suggest that the Applicant's activities would attract the status of a leader of the Falun Gong movement. The RRT stated that if the Applicant had attended the hearing the RRT member would have queried him about this. The RRT member said that she would also have asked him about the nature of his practice and various other questions pertinent to his claim. The RRT concluded by stating “without more, I cannot regard the applicant’s claims as credible”.

6. The Applicant filed an application for review of the RRT's decision on 28 May 2003.

7. Paragraph A1 of the application is as follows:

   “The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa.  In making this finding, the RRT ignored parts of the applicant’s claims in the statement attached to his application for the relevant visa submitted.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to a protection visa and give rise to jurisdictional error.”

8. The Applicant filed an affidavit which merely repeated the grounds set out in the application.

9. The Applicant provided no particulars of the claim that the RRT ignored parts of his claims or the “relevant material” which he says the RRT ignored.

10. The Applicant appeared in person before me this morning.  He was unable to explain the grounds set out in the application or to provide any particulars of the matters set out in the document.

11. There is no substance in the Applicant's claim that the RRT ignored parts of his statement or any other relevant material.  The RRT accurately summarised the contents of the Applicant's written statement in its reasons.  There is nothing to suggest that the RRT did not read or consider the statement.  Indeed it appears to have taken the contents into account.  If the Applicant has a complaint it is no more than that the RRT did not uncritically accept the contents of his statement.  That is not a reviewable error let alone a jurisdictional error of the kind referred to in the authorities.

12. In view of the generality of the Applicant's claims, and the lack of any material put forward to support them, and the fact that the Applicant did not respond to the Delegate's letter, or the invitation to attend the hearing, it is not surprising that the RRT rejected his claims.  There was nothing irrational or unreasonable about the RRT's decision.  The Applicant's contentions amount to nothing more than a challenge to the merits of the RRT's decision.  It is well established that the Court has no jurisdiction to entertain such a challenge.  The RRT's findings were based entirely on matters of fact which were open to it on the material before the RRT. 

13. In summary, therefore, there is no basis for finding that the RRT made any error, let alone a jurisdictional error, or a breach of the so-called Hickman conditions (see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598).

14. It follows that the orders I will make are that the application is dismissed.  I order the Applicant to pay the Respondent's costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             27 October 2003

Applicant appeared in person
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 October 2003
Date of Judgment:	27 October 2003