NBAN v Minister for Immigration and Multicultural Affairs

[2006] FCA 57

FEDERAL COURT OF AUSTRALIA

NBAN v Minister for Immigration and Multicultural Affairs [2006] FCA 57

MIGRATION – no point of principle

VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, applied

NBAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2095 OF 2005

MOORE J
8 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2095 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBAN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

8 FEBRUARY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first 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	NSD 2095 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBAN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	8 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of 27 October 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  On 10 December 2003, the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the appellant a protection visa.  The essence of the appellant's claim was that he was a Christian, a member of a particular Christian group called "Huhan" and was at risk of persecution in his country of nationality (the People's Republic of China) because of his Christian beliefs, together with his practising of the Christian faith.

2. The appellant submitted certain material to the delegate of the Minister.  By reference to that material, the delegate refused to grant the protection visa. The appellant sought a review of that decision by the Tribunal.  He resubmitted the same material to the Tribunal. The Tribunal notified him that on the basis of the material it then had, it could not make a decision in his favour.  The appellant was invited to appear before the Tribunal but declined to do so.  The fact that the invitation took place through his migration agent appears to be irrelevant in the circumstances of this case.  The Tribunal was not satisfied on the material before it that the appellant had a well-founded fear of persecution by reason of his religion.

3. In the proceedings in the Federal Magistrates Court no issue of substance was identified by the appellant and the Federal Magistrate was correct in dismissing the application. However, in this appeal, counsel for the Minister has properly drawn attention to a potential argument available to the appellant concerning the operation of s 424A of the Migration Act1958 (Cth) ("the Act"). The point raised by…