NAZT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 463

FEDERAL COURT OF AUSTRALIA

NAZT v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 463

NAZT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 38 of 2004

WILCOX J
6 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 38 of 2004

BETWEEN:	NAZT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	6 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

2.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, assessed at $2,500.

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 38 of 2004

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

JUDGE:	WILCOX J
DATE:	6 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse an application by the applicant for a protection visa.

2. The applicant is a Chinese national who claims to fear persecution, if he were to return to China, on account of his Falun Gong activities. 

3. It appears from the Tribunal's reasons that the Tribunal invited the applicant to attend a hearing for the purpose of giving oral evidence.  The applicant said that he wished to do this but did not in fact attend the hearing.  In that situation, the Tribunal considered the application for a protection visa on the basis of the material in the Department's file and also material available to it from other sources.

4. The Tribunal member's reasons summarise the personal history of the applicant and the claims he made.  However, the Tribunal member was unimpressed by the applicant's claims.  He described them as ‘nothing more than vague allegations’ which were ‘not supported by any independent evidence’.  The Tribunal member said at p 6 of his reasons that ‘[i]n such circumstances I am unable to be satisfied that any of his claims are true’.

5. Both at a directions hearing of this matter, held on 5 February 2004, and at the commencement of the hearing today, I explained to the applicant that the Court could only intervene in relation to the Tribunal's decision if he could demonstrate jurisdictional error.  Today, I invited the applicant to identify any jurisdictional error.  He responded that the Tribunal did not consider the material put before it.

6. When I pointed to the passages in the Tribunal's reasons that summarise the history and claims of the applicant, the applicant put his submission in a different way.  He said that the Tribunal did not understand the degree of persecution in China of Falun Gong members.

7. It seems to me that this contention raises a question of fact, not a claim of jurisdictional error.  I see no basis upon which this issue entitles the Court to intervene.

8. The application should be dismissed with costs.  I assess the amount of the respondent's costs at $2500.

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

Associate:

Dated:             20 April 2004

The Applicant appeared in person.
Counsel for the Respondent:	Mr R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 April 2004
Date of Judgment:	6 April 2004