NAWM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 205

FEDERAL COURT OF AUSTRALIA

NAWM v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 205

Statutes

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 65, 36

Cases

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 Cited

NAWM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 228 OF 2004

KIEFEL, ALLSOP AND CRENNAN JJ
SYDNEY
13 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 228 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAWM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, ALLSOP AND CRENNAN JJ
DATE OF ORDER:	13 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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 228 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	KIEFEL, ALLSOP AND CRENNAN JJ
DATE:	13 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 27 May 2002 and on 31 May 2002 lodged an application for a protection visa.  He claimed that he had been dismissed from his work and prevented from obtaining further work because of his involvement as President of a Labour Union and his attempts to protect the rights of workers in the textile factory in which he worked. 

2. On 26 July 2002 the Minister’s delegate decided to refuse to grant a protection visa.  The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 28 May 2003 the Tribunal wrote to the appellant at an address he had provided in his application, that of his migration agent, and invited him to attend a hearing and to give evidence and present arguments in support of his claim.  That letter was not returned to the Tribunal.  Another copy of the letter, which was sent to the appellant’s home address which he had provided in the application, was returned.  In any event it seems clear enough that the appellant or his agent received the letter, for the document entitled ‘Response to Hearing Invitation’ was filled in, dated 31 May 2003, and returned to the Tribunal.

3. The appellant had been advised in the letter of 28 May that the hearing before the Tribunal would take place on 19 August 2003.  The appellant did not attend the hearing or contact the Tribunal to explain his failure to attend.

4. The Tribunal in these circumstances had no alternative but to deal with the claims which had been put forward by the appellant on the evidence available to it.  It noted that the appellant had not provided any details of his claim that he was prevented from obtaining work in China.  Because of the lack of information provided the Tribunal was unable to determine how or why his work unit would seek to harm him in the future, especially since his ties with it were severed when he was dismissed from his employment.  The Tribunal was unable to conclude whether the appellant was a person of concern to the authorities.

5. The Tribunal did accept that the appellant was dismissed from his employment, noting the change in the nature of employment in China and the increase in unemployment. It was aware that the government in China has been unable or unwilling to provide employment for the entire population, as it did previously, but it considered other employment options are increasingly available to citizens.  It was not satisfied that he was prevented from obtaining work in the private sector in the foreseeable future.

6. The information available to the Tribunal indicated that it is only citizens who actively express their views against the government who are at risk of harm.  However it was unable to determine what his opinion was, and how he expressed it.  The only evidence was of statements he made about the retrenching of employees at the factory.

7. In these circumstances, it is difficult to identify how the Tribunal could be criticised for not being satisfied of the relevant matters for the purposes of ss 65 and 36 of the Migration Act 1958 (Cth).

8. The application to this Court, brought under s 39B of the Judiciary Act 1903 (Cth), alleged that the Tribunal had ignored parts of the appellant’s claims, but did not identify them. It contained general assertions relevant to jurisdictional error, but any part of the Tribunal’s decision which was said to be erroneous was not identified.

9. His Honour the primary judge made directions requiring the appellant to file and serve written submissions before the hearing date. The appellant did not do so, nor did he make any oral submissions in support of his application when invited to do so.

10. His Honour dismissed the application, holding that there was no basis for interfering with the Tribunal’s finding of fact relating to the availability of employment.  The information provided to the Tribunal had been found to be insufficient to support the appellant’s claims.  On the hearing of this appeal the appellant told the Court of the difficult circumstances that he and his family had been in in China.  Both he and his wife were retrenched and he was unable to pay the medical bills for his father who was ill and subsequently died.  He was required to borrow money and unable to repay it and that was the reason he escaped to Australia.  This explanation was not provided to the Tribunal, which dealt with the appellant’s claims of asserted persecution of a political kind.  It could not therefore form part of any review of the Tribunal’s decision.  It would not in any event have provided support for a claim of political persecution.  Whilst the appellant may fear harm from those to whom he owes money this is not fear of  political persecution nor persecution from any other Convention-based reason.

11. For completeness we deal with the grounds of appeal, which would appear to have been drafted by someone assisting the appellant.  The first is that the procedures required by law to be observed in connexion with the making of the decision were not observed.  The second is a general, and unparticularised, ground that ‘the decision’ involves errors of law.  The first was not a ground for prerogative relief argued before his Honour the primary judge.  The events relating to notification of hearing do not suggest a fault in procedure.  The appellant should not therefore be permitted to raise the matter for the first time on appeal:  VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]. There is no substance to the general ground. His Honour was plainly correct.

12. The appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Allsop and Crennan.

Associate:

Dated:             13 August 2004

For the Appellant:	In Person
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 August 2004
Date of Judgment:	13 August 2004