NATB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 500

FEDERAL COURT OF AUSTRALIA

NATB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 500

NATB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 264 of 2003

WILCOX J
16 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 264 of 2003

BETWEEN:	NATB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs.

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 264 of 2003

BETWEEN:	NATB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	16 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of a Federal Magistrate dismissing an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent to this appeal.  The delegate had rejected an application by the appellant for a protection visa. 

2. The appellant, who is a Chinese national, claimed to be a Falun Gong member and this put her at risk of persecution if she returned to China. 

3. The material before the Tribunal was limited to the written material put before the delegate, the delegate’s decision and certain other written material.  The appellant chose not to exercise her right to attend an oral hearing before the Tribunal.  This may have made it more difficult for the Tribunal to be satisfied about the accuracy of the appellant’s claims.  The Tribunal member expressed reservations about a number of the claims.  However, in the end, the member held this did not matter.  The member said:

   “In any event, having regard to country information already fully set out, the Tribunal is satisfied that an ordinary Falun Gong practitioner in China can pursue his or her beliefs through private physical and spiritual exercise without attracting the adverse attention of the PRC authorities.”

4. It was not suggested by the appellant that she was other than an ordinary Falun Gong practitioner.  When the matter came before the magistrate, a number of issues were considered; in particular, the scope of the Court's authority intervene.  The magistrate carefully considered the way in which the Tribunal had gone about its task.  The magistrate was unable to detect any error of law or any failure to comply with proper procedural processes. I have read the magistrate's decision and I agree with it. 

5. When the matter came before me for directions, the appellant was unrepresented.  However, she had the benefit of an interpreter.  I explained to her the limit on the Court’s jurisdiction and, in particular, that I was bound by the Tribunal’s findings of fact.  Notwithstanding this indication, the appellant informed me she wished to press her appeal.  Accordingly, the matter was set down for hearing today.  When the matter was called on today, the appellant again appeared on her own behalf with an interpreter.  I asked her to put her submission as to why I should allow her appeal.  She asserted that there was evidence to show that Falun Gong practitioners were persecuted in China.  She made it clear that she did not agree with the Tribunal’s contrary view. 

6. I understand that the appellant strongly disagrees with the Tribunal’s finding of fact, but it is a finding of fact.  It is not reviewable by this Court, nor was it reviewable by the magistrate. 

7. I asked the appellant whether she had any submission about legal or procedural mistakes by the Tribunal.  She had no such submission.  Accordingly, it seems to me the appeal must fail. 

8. I should state for the record that the Chief Justice has directed that this appeal be heard by a single Judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976. Accordingly, in dismissing the appeal, I am exercising the appellate jurisdiction of the Court.

9. The order that I make is that the appeal be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             12  June 2003

The appellant appeared in person
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 May 2003