NAustralian National University v Minister for Immigration

[2004] FMCA 25

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANU v MINISTER FOR IMMIGRATION [2004] FMCA 25

MIGRATION – Review of RRT decision – where applicant did not attend RRT hearing – where Tribunal decision not to grant protection visa was based on findings of credibility – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), s.426A

S395 of 2002 [2003] HCA 71
MIMA; Ex Parte Durairajasingham [2000] 168 ALR 407
WABY v MIMIA [2002] FCA at 17
WAGP of 2002 v MIMIA [2002] 124 FCR 276

Applicant: NANU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1223 of 2003

Delivered on: 16 January 2004

Delivered at: Sydney

Hearing date: 16 January 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed. 

2. Applicant to pay the respondent's costs assessed in the sum of $4500.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1223 of 2003

NANU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 28 October 2001.  On 16 November 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 7 January 2002, a delegate of the Minister refused to grant him a protection visa and on 18 January 2002 the applicant applied for review of that decision from the Refugee Review Tribunal.

2. On 13 December 2002 the Tribunal wrote to the applicant advising that it had considered all the material before it in relation to his application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence and present arguments at a hearing on 18 February 2003. On 2 January 2003 the applicant advised the Tribunal that he wanted to give oral evidence. However, he did not attend the hearing or contact the Tribunal to explain his failure to attend. The Tribunal proceeded under s.426A of the Migration Act and made its decision on the papers.

3. The applicant claims to have a well-founded fear of persecution arising out of his membership of the Falun Gong organisation.  This can respectively be considered a claim in respect of political opinion, a claim in respect of religion or a claim in respect of membership of a particular social group.  The applicant's submissions to the delegate and to the Tribunal indicated that he was a single man who had been working in a development bank as a driver from 1990 until 1998.  He had previously travelled outside the PRC on one lengthy holiday in 1999.

4. According to his statement, he was laid off from his employment in 2000 because of his adherence to Falun Gong, which he claimed he had become interested in, in 1999.  He appears to have been made something of a scapegoat by the bank and eventually he says he was placed in a detention centre as an example to other employees.  He claims that whilst in detention he had been tortured and denied adequate food or water.  The applicant claimed that since arrival in Australia he had continued with his Falun Gong activities.

5. At [CB 24] the Tribunal in its findings and reasons states:

   “ The applicant's claims are so vague and general that it is difficult for the Tribunal to establish the facts of the matter.  He claims to have worked for a bank until being sacked for his Falun Gong activities.  In his protection visa application, he indicated that this was some time during 1998 whereas in his first written submission he put the year as 2000.  The Tribunal notes that when the applicant obtained his passport in early 1999 the passport indicated that he was an employee.  Hence the Tribunal rejects the information that he was dismissed in 1998 ...

   The Tribunal is not satisfied with the veracity of the applicant's claim that he began Falun Gong activities in 1999 as it was spreading around the countryside.  The Tribunal notes that the applicant was away from China from mid-April until the beginning of June 1999 on vacation.  Either he became interested in Falun Gong prior to his holidays, which meant that he was still pretty much a novice by mid year given that he had not attended any public exercise sessions whilst on holiday or else he took up an interest when he returned which would mean that he had only just started classes when it was banned.”

6. The Tribunal took the view that the applicant could not have been a leader in the Falun Gong movement by the time that movement was proscribed.  The Tribunal came to the view that it was implausible that his employer could have arranged for him to be placed in a detention centre.  That is a view with which some might cavil but the very fact that a court does not agree with a tribunal's application of logic does not make the Tribunal's decision one in respect of which jurisdictional error has occurred.

7. The Tribunal later states that it could not accept that the detention happened at all because the applicant's claims about it were so vague; there were no dates, no duration and no details of release.  Furthermore, the Tribunal took the view that it was unlikely that the applicant would have been allowed an exit visa from China if he had been a person who had come of such interest to the authorities that he had been detained in the manner claimed.

8. The Tribunal took into consideration the possibility that the applicant's practise of Falun Gong in Australia might cause problems for him if he returned but was not satisfied that the photographs which the applicant submitted or his statement indicated that he had made himself a target for punishment or retribution upon return to China.

9. In the final paragraph of its reasons the Tribunal makes some conclusions concerning the applicant's situation if he conducts his Falun Gong activities in private, noting that the website does not require practitioners to gather together or in public.  I do not think that by this expression of opinion the Tribunal fell into the error identified by the High Court in S395 of 2002 [2003] HCA 71.

10. The Tribunal's conclusions concerning the applicant's credibility were open to it on the information provided to the Tribunal and that which was used by the Tribunal to provide it with background material. As McHugh J said in MIMA; Ex Parte Durairajasingham [2000] 168 ALR 407 at [67]:

    “This is essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility because the function of the primary decision maker par excellence was...”

11. In WABY v MIMIA [2002] FCA at 17 Tamberlin J made the following comment:

    “ It is well settled that in reasoning to its conclusion there is no obligation on the Tribunal to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process...”

12. These findings were approved by the Full Bench in WAGP of 2002 v MIMIA [2002] 124 FCR 276. In his submissions to me the applicant told me that he did not believe the Tribunal had considered his case and advised me that if he went back to China he would be badly treated and punished. The applicant then attempted to provide me with some evidence about the situation in China, the circumstances of his being placed in detention and the existence of records held by the relevant authorities. He told me that for those reasons he believed he would be in danger if he did return.

13. I pointed out to the applicant that he did not attend the hearing before the Tribunal and that this evidence was therefore not before it.  I was unable in all the circumstances to take it into account because my duty was not to interfere with a decision on the merits but only to decide if the Tribunal had erred in the manner in which it came to its conclusions and whether or not such error constituted a jurisdictional error.

14. In all the circumstances I am unable to provide this applicant with review. I dismiss his application. I order that the applicant pay the respondent's costs which I assess in the sum of $4500.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: