NAYB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 295

FEDERAL COURT OF AUSTRALIA

NAYB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 295

NAYB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2162 OF 2003

STONE J
18 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2162 OF 2003

BETWEEN:	NAYB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	18 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.That 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 2162 OF 2003

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

JUDGE:	STONE J
DATE:	18 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of the People’s Republic of China who arrived in Australia on 19 December 2002.  He lodged an application for a protection visa on 31 December 2002.  That application was refused in turn by a delegate of the respondent Minister and by the Refugee Review Tribunal.

2. The applicant now applies to this Court under s 39B of the Judiciary Act 1903 (Cth). In his initial application filed on 1 December 2003 the applicant claimed that the Tribunal had ignored part of the claims he had made in the statement accompanying his application for a protection visa and so fell into jurisdictional error. The application did not contain any details in support of that claim.

3. At the hearing before me, the applicant, having been given a considerable opportunity to make submissions in relation to his original application, sought leave to file in Court an amended application which substituted new grounds of review.  Those grounds alleged that the Tribunal failed to comply with s 426A of the Migration Act 1956 (Cth) (‘Migration Act’), that it constructively failed to exercise its jurisdiction and that its decision was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.

4. The respondent did not oppose the filing of the amended application although counsel for the Minister did seek an opportunity to file additional submissions after the hearing should that be necessary.  On that basis I allowed the applicant to file the amended application in court.  As matters transpired it was not necessary for the respondent to file further submissions.

5. The background to the applicant's claim is that he is a Christian of long standing who claims to fear persecution in the People’s Republic of China on the grounds of religion.  He claims that the attitude of the Chinese Government was exacerbated because of his support for refugees to China from North Korea. 

6. By letter dated 10 September 2003, the Tribunal wrote to the applicant inviting him to attend the hearing before the Tribunal on Friday 3 October 2003.  That letter enclosed a response form headed, "Response to Hearing Invitation".  The Tribunal noted in its reasons for decision that that the completed response form, indicating that the applicant would attend the hearing and that he required a Mandarin speaking interpreter, was received by facsimile in the Tribunal on 12 September 2003. 

7. On the day of the hearing, the applicant did not attend before the Tribunal and neither he nor his authorised representative contacted the Tribunal.  The Tribunal stated that pursuant to s 426A of the Act it decided to make its decision on the papers without further recourse to the applicant.  In giving its reasons for decision the Tribunal made the following comments:

   “The applicant has provided only vague details in support of his claims.  There is nothing to support the applicant’s claims in relation to his Christianity other than his unsubstantiated and unclear assertions.  There are insufficient particulars provided by the applicant, such as his denomination, whether he attended a state-run church or a house church in the PRC, what adverse attention, if any, has been shown by the PRC authorities to the members of the church, whether he is an ordinary member or has a leadership role, and whether he proselytises.  Similarly, there are no claims or particulars about the applicant’s religious activities in Australia.  I have been unable to ask questions regarding his religion which would indicate the degree of his religious commitment and to enable me to be satisfied that the applicant is a practising Christian.

   Further, the applicant has not provided details sufficient to enable me to be satisfied that he was involved in helping North Koreans.

   Importantly, he has not advised of the dates that he was detained and how that may be viewed in the context of his fulfilling PRC requirements in order to obtain a passport and exit visas in order to depart the PRC and enter Australia.  I note that the applicant stated in answer to Questions 47 and 48 of the Protection visa application form that he left the PRC legally and had no trouble obtaining travel documents.  In this regard, the independent evidence indicates that if a person obtains a passport and (exit) visa to leave China, then they are of no interest to the Chinese authorities (UK Home Office China country assessment, April 2002 and CX27863).  I accept this independent evidence and I can only conclude therefore that the applicant was of no adverse interest to the PRC authorities.  As a result of all the above, I therefore cannot be satisfied as to the applicant’s claims regarding his detention.

   I cannot be satisfied as to the applicant’s claims regarding religion and helping the North Koreans so that I cannot accept that the authorities would have any on-going adverse interest in him.

   I am unable to be satisfied that the applicant’s claims are genuine in the circumstances where they can not be tested and assessed and also where the applicant’s credibility can not be assessed during the course of a hearing.

8. For those reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution should he return to the People’s Republic of China and affirmed the decision of the delegate refusing the protection visa.

9. At the hearing before me, the applicant initially stated that he had not received the letter of invitation from the Tribunal, however, when directed to copies of the letter and response form in the appeal book he admitted that the response form document was familiar to him and did not persist in his denial of receipt of the letter.  In so far as I understand them, the submissions made by the applicant related to the merits of his application and referred to the lack of religious freedom in the People’s Republic of China.  He appealed to the Court to accord justice to him.

10. The limits of the Court's jurisdiction in applications of this kind are well known.  In particular, the Court has no jurisdiction to review the merits of an application.  In relation to the alleged breach of s 426A of the Act it is clear that that section permits the Tribunal to make a decision on an application without taking further action to enable an applicant to appear before it provided the conditions set out in subsections 1(a) and 1(b) have been satisfied.

11. The first condition is that the applicant is invited under s 425 to appear before the Tribunal.  I am satisfied in this case for reasons already explained that the applicant did receive an invitation from the Tribunal and indeed responded to that invitation.  The other pre-condition in subsection 2(b) is that the applicant does not appear before the Tribunal at the scheduled time and place.  On the applicant's own case that pre-condition is clearly met.

12. In the circumstances, I am satisfied that the Tribunal was entitled to proceed, as it did, to make a decision without further recourse to the applicant and that no error of law was involved.  I am also satisfied that the other grounds of review put forward by the applicant are in essence a plea for merits review which is beyond the jurisdiction of this Court.  For these reasons the application must 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 Justice Stone.

Associate:

Dated:             22 March 2004

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 March 2004
Date of Judgment:	18 March 2004