NAXM v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1538

FEDERAL COURT OF AUSTRALIA

NAXM v Minister for Immigration & Multicultural & Indigenous Affairs
 [2003] FCA 1538

NAXM v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

N 1800 of 2003

LINDGREN J
16 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1800 OF 2003

BETWEEN:	NAXM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	16 DECEMBER 2003
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	N 1800 OF 2003

BETWEEN:	NAXM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	16 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of the People’s Republic of China.  She arrived in Australia on 18 November 2002.  On 3 December 2002 she lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’).

2. On 16 December 2002 a delegate of the respondent (‘the Delegate’ and ‘the Minister’, respectively) refused to grant a protection visa.

3. On 15 January 2003 the applicant applied to the Refugee Review Tribunal (‘the RRT’) for a review of the Delegate’s decision.  On 25 September 2003 the RRT decided to affirm the Delegate’s decision.  The RRT’s decision was handed down on 21 October 2003.

4. The applicant commenced this proceeding on 10 November 2003. It purports to be an application under s 39B of the Judiciary Act 1903 (Cth). According to the application by which the proceeding was commenced, the applicant contends that the RRT:

   • ignored parts of her claims expressed in the statement attached to her application for the visa;
   • ignored relevant material; and
   • reached a decision that could not reasonably have been reached or that was without reasonable or rational foundation.

   The form of application also refers to ‘jurisdictional error’.

5. The applicant claimed that she was a practitioner of Falun Gong, that she had been harassed by the Chinese authorities, dismissed from her job (after introducing Falun Gong practices to others at her workplace), and held in a detention centre until she signed an undertaking to stop practising Falun Gong.  She also complained that she had been required to report regularly to the police, that she had been unable to find employment, and that some of her friends had gone missing.

6. On 5 September 2003 the Tribunal wrote to the applicant advising her that it had considered all of the material before it relating to her application but was unable to make a decision in her favour on that information alone.  The Tribunal invited the applicant to give oral evidence and to present argument at a hearing on 1 October 2003.  On 25 September 2003 the applicant advised the RRT in writing that she did not wish to avail herself of that opportunity, and that she consented to the RRT making a decision without taking any further action to allow or enable her to appear before it.  Accordingly, the RRT determined the matter on the documentary evidence before it and without the benefit of any oral evidence from the applicant.

7. The Tribunal recorded that, apart from her own assertions, the applicant had not provided any evidence that she was a practitioner of Falun Gong or that she had ever been subjected to any ill treatment as a result.  The Member stated:

   ‘As she has not taken the opportunity to give oral evidence at a hearing, I am unable to ascertain whether she is familiar with Falun Gong practice to a level consistent with her claims, nor whether she is known to be a practitioner by the authorities and has indeed been subject to dismissal from her employment, detention and harsh treatment.  I am unable to establish the central and relevant facts.’

8. There is no substance in the claim made in the application by which the applicant commenced this proceeding that the RRT ignored parts of the applicant’s claims in the statement attached to her application for the visa.  The applicant’s claim was that she had a well-founded fear of persecution on the ground of her religion, Falun Gong.  The RRT correctly understood that that was the nature of her claim, did not misunderstand it in any respect, and did not ignore any alternative basis on which the definition of ‘refugee’ in the Refugees Convention might apply in her case.  It was of course a matter for the RRT how much weight (if any) to give to the various allegations made by the applicant in support of her application for review, in the light of her non-attendance at the RRT hearing.

9. I invited the applicant to put submissions to me and to point to any mistake made by the RRT.  She said that the RRT did not take into account the disadvantages which would await her if she were to return to her country of nationality.  But the RRT was not satisfied that she had been persecuted in the past, and so the basis of the fear of persecution in the future, on which the applicant relied, was gone. 

10. I can see no error, let alone jurisdictional error, in the reasoning of the RRT.

11. It follows that the application should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  22 December 2003

The Applicant appeared in person with the assistance of an interpreter
Counsel for the respondent:	Mr G Kennett
Solicitor for the respondent:	Clayton Utz
Date of Hearing:	16 December 2003
Date of Judgment:	16 December 2003