NAUW v Minister for Immigration - [2005] FMCA 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAUW v MINISTER FOR IMMIGRATION

[2005] FMCA 75

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.426A

Applicant:

NAUW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2575 of 2003

Delivered on:

2 February 2005

Delivered at:

Sydney

Hearing date:

2 February 2005

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2575 of 2003

NAUW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 June 2003 and handed down on 24 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. He had claimed a protection visa on the basis of an asserted risk of persecution because he is a Falun Gong practitioner. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr Smith. I adopt paragraphs 3-8 of those written submissions for the purposes of this judgment by way of background:
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 3 April 2002 and lodged an application for a protection visa on 15 April 2002. In a statement lodged with his visa application the applicant claimed to fear persecution in China for reason of his adherence to Falun Gong and, in particular, his devotion to the promotion of Falun Gong. He claimed to belong to a group that was planning a demonstration. A planned meeting was cancelled when the group was told that the police intended to arrest the group and, the following day, two members were arrested and interrogated. Police came to a later meeting and took the group to a police station before setting the members free for lack of evidence.
On 27 August 2002, a delegate of the respondent made a decision to refuse to grant the applicant a visa and the applicant applied to the RRT for review of that decision.
By letter dated 9 May 2003 the RRT invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims. The applicant did not reply to that invitation and did not attend the hearing.
On 24 July 2003, the RRT handed down its decision affirming the decision of the delegate.
RRT’s decision
The RRT accepted that the applicant was a citizen of China but did not accept most of his other claims. In particular, it did not accept that:
a)he was a genuine Falun Gong practitioner;
b)he continued to practice Falun Gong in 2001 and 2002 when he claimed that the government’s crackdown on the practice was in full swing;
c)the decision to leave for Australia was made in late February 2002;
d)the group of which he claimed to be a member planned to organise a parting demonstration in march or early April 2002; and
e)the purpose of the gathering on 27 March 2002 was to plan a Falun Gong meeting and during that gathering police detained and questioned members of the group.
The applicant relies upon his application filed in the Federal Court on 13 August 2003. The application was transferred to this Court by order of Conti J on 17 November 2003. His Honour also ordered, by consent, that the applicant file and serve any amended application and any evidence upon which he wished to rely by 23 February 2004. The applicant did not file or serve anything further. The only evidence before me is the court book.
The application asserts that the RRT found that the applicant failed to satisfy the basic requirement for the grant of the visa. The application asserts that in making this finding, the RRT ignored parts of the applicant's claims in the statement attached to his application for the relevant visa. The application asserts that 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 an incorrect finding that the applicant is not entitled to a protection visa. The application asserts that these errors amount to jurisdictional error.
The applicant has not given any particulars of these asserted errors. I invited him today to identify what part or parts of his claims have been overlooked by the RRT. He was not able to do so, although it is clear that he contests the findings reached by the RRT. He continues to assert that he is a genuine Falun Gong practitioner. He asserts that he told the truth about the circumstances in which he came to Australia. He asserts that he came here to find freedom.
If the applicant had attended a hearing before the RRT it would have been possible for him to expand upon his claims and to answer questions put to him by the presiding member. The applicant was invited to a hearing by letter dated 9 May 2003. That letter was principally directed to the applicant's migration agent. The migration agent was Mr Jack Meng. The applicant had appointed Mr Meng his authorised recipient for the purposes of his case before the RRT (court book, page 51). Although the hearing invitation was also sent to the applicant at his home address, the RRT complied with its statutory obligation by sending the hearing invitation to the applicant's migration agent. The applicant says that he did not receive any hearing invitation. The court book establishes that the invitation sent to the applicant's migration agent was returned to sender. The presiding member notes on pages 67 and 68 of the court book that no other addresses were available and that an attempt to contact the migration agent by telephone was unsuccessful. In the circumstances, when the applicant did not appear on the day and at the time appointed for the hearing the presiding member elected to proceed without a hearing. That course was in the circumstances open to the presiding member pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant failed before the RRT for several reasons. First, the presiding member was not satisfied on the basis of the material submitted by the applicant that he is a genuine Falun Gong practitioner. The applicant suggested that he may have had difficulty in expressing knowledge about Falun Gong because he had not learned things particularly well. That may be so but the presiding member had to form a judgement based on the material before him. The finding reached by the presiding member was reasonably open to him on the material before him. Secondly, the RRT had before it information provided by the Australian Embassy in Beijing. That information established that the applicant had come to Australia as part of a business delegation. It showed that the applicant had made arrangements to come to Australia before the events he alleged caused him to decide to come here. Understandably, this added to the adverse credibility view formed by the presiding member.
In addition, the presiding member had regard to country information which indicated that the applicant's claims about a crackdown by the Chinese authorities in March or April 2002 were unlikely to be true. All of the above findings were reasonably open to the RRT on the material before it.
Accordingly, there was a rational foundation for the decision. There is nothing in the material before me to indicate that any part of the applicant's claims was overlooked by the RRT. I am satisfied that the proceedings before the RRT were fair. In the circumstances I find that there was no jurisdictional error in the decision of the RRT.
I will dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Mr Smith seeks an order for costs fixed in the sum of $4,250 on a party/party basis. The applicant did not wish to make any submissions on costs. I am satisfied that not less than $4,000 has been properly and reasonably expended on behalf of the Minister in these proceedings when assessed on a party/party basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 February 2005