NAWM v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 401

FEDERAL COURT OF AUSTRALIA

NAWM v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 401

NAWM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1516 OF 2003

EMMETT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1516 OF 2003

BETWEEN:	NAWM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be 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	N1516 OF 2003

BETWEEN:	NAWM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of China, arrived in Australia on 27 May 2002.  On 31 May 2002, he lodged an application for protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 26 July 2002 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 6 August 2002 the applicant applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 22 August 2003, the Tribunal affirmed the decision not to grant a protection visa.

2. On 8 October 2003, the applicant filed an application to this Court for prerogative writ relief under s 39B of the Judiciary Act 1903 (Cth). The details of the claim were stated as follows:

   ‘1.       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 her [sic] 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 the relevant visa and give rise [sic] to jurisdictional error.

   2.The above jurisdictional error affected the exercise of power of the RRT.’

3. On 31 October 2003 I directed the applicant to file and serve an outline of submissions on or before five clear working days before the hearing date.  The matter was listed for hearing today.  When the matter was called on the applicant said that he did not have anything to say in support of his application but wanted to stay in Australia.  He asked how he should go about seeking such a right from the Australian Government. 

4. The reasons of the Tribunal indicate that the applicant claimed that he experienced harassment by the authorities in China, due to his political opinion.  The applicant claimed that he was demoted and later dismissed by his work unit in China because he actively protested against the retrenchment of colleagues.  He claimed that he was prevented from obtaining work and that he anticipated similar difficulties in the future.  He also claimed that he would be subject to persecution by his previous employer and local authorities, because of his political opinion.

5. The applicant had the assistance of a migration agent before the Tribunal. Nevertheless, the Tribunal considered that his claims were presented poorly.  The Tribunal observed that the applicant provided no details to support his claim that he was prevented from working in China.  The Tribunal noted that the applicant did not elaborate on his political opinion or how he intended to express it, or under what circumstances his opinion would lead to harm by the Chinese authorities.  The Tribunal considered that it was unable to determine from the applicant’s statement how or why his work unit would seek to harm him in the future when effectively, the work unit severed ties with him when he was dismissed.

6. The Tribunal accepted the applicant’s claim that he was dismissed by his work unit.  The Tribunal also accepted, from information available to it regarding the changing nature of employment in China and the Chinese Government’s policy of eliminating unprofitable State run work units, that an increase in unemployment and associated civil unrest had resulted.  The Tribunal found that the Chinese Government had been unable and unwilling to provide employment for the entire population as it did previously and that many Chinese citizens have to compete for employment in the private sector.

7. However, the Tribunal was of the view that denial of Government employment does not amount to persecution if other employment options are available.  The Tribunal was satisfied that such options are increasingly available to citizens in China.  The Tribunal was not satisfied, on the information available to it, that the applicant was prevented from obtaining employment in the private sector by the Chinese authorities, or that the authorities would prevent him from obtaining work in the private sector in the reasonably foreseeable future.  Those findings are findings of fact and there is nothing to suggest that the Tribunal did not have before it, material upon which it could base those findings.

8. The only material supporting the applicant’s claims was a brief statement of events accompanying the application for a protection visa.  Despite being told by the Tribunal that this was insufficient for the Tribunal to arrive at a favourable decision, the applicant did not put forward any further material or evidence and did not attend the hearing offered to him by the Tribunal. 

9. I do not consider that any of the grounds asserted by the applicant has been made out. On that basis, it is clear that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Act, and this Court has no basis for interfering with it. It follows that the application should be dismissed.

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

Associate:

Dated:             7 April 2004

Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Mr D Bell
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004