NAYY v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 481

FEDERAL COURT OF AUSTRALIA

NAYY v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 481

MIGRATION – application for judicial review of Refugee Review Tribunal decision – applicant asserted he was a member of the Falun Gong movement – application dismissed

Migration Act 1958 (Cth)

NAYY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N10 of 2004

HILL J
22 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N10 OF 2004

BETWEEN:	NAYY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	22 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.

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	N10 OF 2004

BETWEEN:	NAYY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	22 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court is an application brought under section 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal refusing the grant to him of a protection visa.

2. The applicant is a citizen of the People's Republic of China.  On 23 December 2002 he applied for a Protection (XA) Visa.  That application was refused by a delegate of the respondent Minister for Immigration & Multicultural & Indigenous Affairs (the “Minister”) and the applicant applied then to the Tribunal to review the delegate's decision. 

3. The applicant's case was contained in a typed statement, the substance of which is set out by the Tribunal under the heading, Claims and Evidence.

4. The Tribunal, by letter dated 7 October 2003, notified the applicant that it was unable to make a decision in his favour on the information he had provided.  In the response to that document the applicant indicated that he wished to attend a hearing and for that purpose, needed an interpreter in the Mandarin language.  Notwithstanding that indication the applicant did not attend the Tribunal hearing.  He gave no explanation for not doing so.  The Tribunal, on the basis of the information contained in the statement, was of the view that there were insufficient particulars provided by the applicant to satisfy the Tribunal that the applicant was, as he claimed, a true Falong Gong adherent.

5. The Tribunal said that because he did not attend, the Tribunal was unable to ascertain the level of the applicant's commitment to Falong Gong.  The Tribunal was unable to determine whether the applicant was or was not a leader in the Falong Gong in the People's Republic.  It did not know whether the applicant practised Falong Gong in Australia.  Accordingly, the Tribunal was unable to find that the applicant was a Falong Gong practitioner.  Because the applicant had apparently had no difficulty leaving China, the Tribunal was of the view that the applicant was not a person of adverse interest to the authorities.

6. The Tribunal, accordingly, was unable to accept that the applicant had been criticised or that his equipment had been confiscated by the police or that he had been warned that he would be detained if found practising Falong Gong or that he had been fired by his work unit or that he lived in fear in China.  The Tribunal also did not accept that the applicant's son was discriminated against in China.  Ultimately, the Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to China now or in the foreseeable future.  On this basis the Tribunal was not satisfied that the applicant was a refugee and thus a person to whom Australia owed protection obligations.

7. In the application to this court, the applicant said that the Tribunal had ignored parts of his claim.  It was said that the Tribunal had ignored relevant material or had reached its decision without reasonable or rational foundation and, accordingly, that the Tribunal's decision was infected with jurisdictional error.  It seems that the application was prepared by a friend of the applicant.  Apparently, it bore no relation to the applicant's own views as to the Tribunal's decision.  Indeed, the applicant said that he had nothing at all to say to me as to why the Tribunal's decision should be set aside.

8. I have read the Tribunal's decision and am unable to see in it any basis for saying that the Tribunal committed a jurisdictional error.  Ultimately, the Tribunal was of the view that the Tribunal member was unable to be satisfied that the applicant was a refugee and in circumstances where the applicant, for whatever reason, gave no assistance to the Tribunal by staying away from the hearing and not putting any additional matters to the Tribunal, which might have allayed the Tribunal's concern.  In the circumstances I would dismiss the application. I would order the applicant to pay the Minister's costs of the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             22 April 2004

Applicant appeared in person
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 April 2004
Date of Judgment:	22 April 2004