NBAK v Minister for Immigration - [2005] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBAK v MINISTER FOR IMMIGRATION

[2005] FMCA 532

MIGRATION – RRT decision – Chinese Falun Gong supporter – did not attend RRT hearing – no error found.

Migration Act 1958 (Cth), ss.426A, 483A, Part 8

Judiciary Act 1903 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

NBAK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2154 of 2004

Judgment of:

Smith FM

Hearing date:

12 April 2005

Delivered at:

Sydney

Delivered on:

12 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr A Carter

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2154 of 2004

NBAK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed in the Federal Court of Australia under s.39B of the Judiciary Act 1903 (Cth), which has been transferred to this Court for hearing under an order made by Wilcox J on 24 February 2004. In the application, the applicant challenges a decision of the Refugee Review Tribunal dated 26 November 2003 and handed down on 23 December 2003. The Tribunal affirmed a decision of a delegate of the Minister which refused the applicant’s application for a protection visa.
The Court has jurisdiction to consider the matter under s.483A of the Migration Act 1958 (Cth) which gives it the same jurisdiction as the Federal Court in relation to a matter arising under the Act. The jurisdiction of both Courts is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. The Court does not have power itself to decide if the applicant should be believed or whether he should be given a protection visa.
In the present case, the applicant arrived in Australia in January 2003. On 20 February 2003, he applied for a protection visa assisted by Jack Meng Immigration. His application attached a three-page statement, most of which gave general background information about the Chinese authorities’ responses to the Falun Gong movement.
In relation to this particular applicant, the applicant’s statement said that he supported Falun Gong and:
Even though I was busy with my own business, I still actively promoted Falun Gong so as to let more people understand Falun Gong.
He said that in February 2002 he met with group leaders of Falun Gong to plan a demonstration in his hometown city, but the meeting broke up when they received information that the Public Security Bureau was sending a group of police to arrest them. He said that on the next day one of the members was visited by policemen who questioned her and warned her to keep away from Falun Gong. He said:
Avoiding from being arrested by the police, we decided not to meet for a while. But I had an intuition that the unfortunate thing will happen to me in near future. So several other members and I began to apply for visitor visas to Australia in case we had a way to go when we are really in the danger.
He said that, after he was granted a visa, he decided to call a meeting to plan another demonstration. They met at a restaurant,
when we were suddenly surrounded by a group of police. Without any evidence, we were set free after being taken to the police station and strictly questioned. But one thing is sure that the security authorities have noticed us and we are in the danger of being arrested any time.
Therefore I decided to leave China for a period of time as I had got a visa to Australia. Then I left China and arrived at Australia.
The delegate refused the application in a decision made on 12 March 2003. The delegate said he was not satisfied that the applicant had a well-founded fear of persecution on return to China. The delegate pointed to a range of factors suggesting that the applicant was not of adverse interest to the Chinese authorities, including that he was able to continue in employment until the month of his departure, was released by police after questioning, obtained his passport legally and without difficulty in his home province, and departed China without hindrance from the authorities.
The applicant lodged an application for review by the Refugee Review Tribunal on 11 April 2003 assisted by Jack Meng Immigration. It contained no further supporting information or submissions but said:
Please see my file at DIMIA
On 17 October 2003, the Tribunal posted a letter to the applicant addressed to his home address and to his agent. It informed him:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
It invited him to come to a hearing of the Tribunal “to give oral evidence and present arguments in support of your claims”. It informed him: “If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”. It invited him to “send us any new documents or written arguments you want the Tribunal to consider”.
On 20 October 2003, the Tribunal received a response to its invitation signed by the applicant which said that he did want to come to the hearing. It seems that the Tribunal made itself available at the appointed time, but no appearance was made by or on behalf of the applicant. In its decision, the Tribunal refers to this and says:
The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal carefully summarised the claims made by the applicant in his visa application, and gave short reasons for affirming the delegate’s decision:
I accept that the applicant is a national of China. However the applicant has provided scant details in his application for a protection visa. The applicant has stated that he has practised Falun Gong since 1995 but he has provided no further details of the nature of his involvement from 1995 until the time of his departure for Australia in 2003. The applicant has provided much detail about the history and significant event relating to Falun Gong in China however he has not provided any particulars about the nature and level of his own involvement. He has stated that he provided donations and facilities to the Falun Gong group and that he actively promoted Falun Gong not withstanding the fact hat he was busy with his own business. The applicant has stated that a friend warned him that the Public Security Bureau had become aware of plans which he and his group had for a meeting to discuss plans for a demonstration and as a result of this meeting had to be cancelled. The details of this incident are vague at best. The applicant otherwise has provided no details of harm that he has suffered in the past because of his involvement with Falun Gong …
In view of the lack of details contained in the protection visa application the Tribunal cannot be satisfied that the applicant is or was a Falun Gong practitioner or leader or indeed that he suffered mistreatment. Indeed on the information provided by the applicant it is impossible for the Tribunal to be satisfied that any of the claims with respect to Falun Gong are true. As the Tribunal cannot accept the applicant’s claims on the facts, it cannot be satisfied that he has a well-founded fear for a Convention reason.
In my opinion, the Tribunal was entitled to proceed without taking further action as a result of the applicant’s non-attendance at the hearing, and I can find no error in its reasoning when affirming the delegate’s decision. I am unable to be satisfied that the Tribunal’s decision is affected by jurisdictional error.
The applicant’s application filed in the Federal Court makes a general assertion that:
The RRT ignored parts of the applicant’s claims in the statement attached to her [sic] application for the relevant visa submitted.
It alleges that, as a result, the Tribunal made jurisdictional error of various sorts. There is no substance to this allegation since in my opinion the Tribunal did not ignore the applicant’s claims, but gave them careful consideration and was unable to be satisfied by them in the absence of further evidence from the applicant.
The applicant filed an amended application which makes three complaints. The first is:
The RRT acted in breach of s.426A as the applicant was denied a hearing through no fault of his own.
As I have indicated above, I can find no error by the Tribunal in exercising its discretion to proceed under s.426A. There is no evidence before me, and nothing has been said by the applicant today, to suggest that the Tribunal acted unfairly in the circumstances known to it.
The second complaint is that the Tribunal failed to consider claims made by the applicant which are identified. However, the words have been plainly taken from a pleading in a distinctly different case involving an applicant claiming to be a Christian who assisted North Korean refugees. They make no reference to the applicant’s case.
The third complaint is that the Tribunal’s decision was:
Reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.
The material before me provides no substance at all for this allegation.
Before me today the applicant asserted that he had told the truth in his visa application. He said that all his submissions were in the documents filed, and was unable to make any additional submission in support of his case.
Considering all the material before me, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error, and I dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 5 May 2005