NBAQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 628

FEDERAL COURT OF AUSTRALIA

NBAQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 628

MIGRATION – no issue of principle

NBAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 112 OF 2004

CONTI J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 112 OF 2004

BETWEEN:	NBAQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	30 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        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	NSD 112 OF 2004

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

JUDGE:	CONTI J
DATE:	30 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (‘RRT’) made on 17 December 2003 and handed down on 14 January 2004, in which the RRT affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa under the Migration Act 1958 (Cth) (‘the Act’). Both the delegate and the RRT were not satisfied the applicant met the criteria set out in s 36(2) of the Act.

2. The applicant arrived in Australia from China on 9 February 2003 and applied for the visa on 7 March 2003.  The basis of this claim was that he feared persecution in China because he was a Falun Gong practitioner.  The delegate, not satisfied the applicant was a person to whom Australia has protection obligations under the Refugees Convention, refused the visa on 19 March 2003.  The applicant applied to the RRT for review of this decision on 22 April 2003.

3. On 29 October 2003, the RRT wrote to the applicant and advised him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  Accordingly, the applicant was invited to attend a hearing at the RRT ‘to give oral evidence and present arguments in support of [his] claim’.  The date and time of the hearing was given, and a brochure was enclosed explaining what would happen on the day of the hearing.  Reference was also made to the RRT’s website.

4. On 14 November 2003, a migration agent informed the RRT that the applicant did not wish to attend the hearing, and further that consent was thereby given to the RRT to determine the review, without the applicant taking any step in response to the RRT’s hearing invitation.  This was seemingly done on the instructions of the applicant whose signature appeared on that response to the RRT.  No formal hearing of the applicant’s application, for review was thus convened, and the RRT determined the matter on the documentation already placed before it. 

5. The RRT found the applicant had not provided sufficient information to enable it to be satisfied as to the central factual matters raised by the applicant in support of the application, and that as a result, it was unable to reach the necessary state of satisfaction as to the applicant’s asserted need for protection.  In drawing such a conclusion, the RRT referred to the unsatisfactory nature of the written claims provided by or on behalf of the applicant, involving thereby a lack of detail and numerous inconsistencies that could not be clarified on the paperwork alone.  As was candidly stated by the Tribunal Member in his reasons for decision:

   ‘In the absence of an opportunity to question the applicant about his Falun Gong beliefs and practices, it is difficult to reach the necessary state of satisfaction that he was, in fact a Falun Gong practitioner prior to his departure from China.  If he had attended a hearing I would have asked the applicant questions in order to ascertain whether he is, in fact, a genuine believer in Falun Gong.  Moreover, while he claims to currently practice Falun Gong in Australia, he has provided no details of where or how often he practices.’

6. The RRT also referred to independent country information to the effect that those practitioners of Falun Gong who were perceived by the authorities to be ‘core leaders’ or ‘diehard’ members, who refuse to recant their beliefs, and who continue to publicly protest or practice in defiance of the law, were at risk of persecution.  However, on the information available, the RRT was:

   ‘unable to be satisfied that he [the applicant] falls within any of these categories, or that he otherwise has a well founded fear of persecution in the PRC [People’s Republic of China] for reason of his belief in or practice of Falun Gong.’

7. As for the applicant’s current beliefs and his claim he did not want to return to China and hide his beliefs and practice in private, the RRT was not satisfied that the applicant’s commitment:

   ‘…to Falun Gong is now such that there is a real chance that he would cease to co-operate with the authorities and comply with the law, if he returned to the PRC, and that he would now practise Falun in a manner which would bring himself to the attention of the authorities.  The applicant has provided insufficient information upon which I can be satisfied that his attitude to Falun Gong has changed in this fundamental way since he has been in Australia.’

8. The grounds of appeal from the decision of the RRT, as set out in the applicant’s amended application, disclose no viable basis in law for setting aside the decision of the RRT.  They claim in very broad terms an error in law / jurisdictional error on the part of the RRT for denying the applicant a hearing, because ‘he was under the impression that he would be detained by the Department of Immigration and deported to his home country (where he would be persecuted by the government) after the hearing if the Tribunal member made a unfavourable decision immediately after the hearing’.  Further, it is claimed, the RRT ‘failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was a Falun Gong practitioner as he claimed’, and further that the ‘RRT’s decision was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed’.

9. Such grounds do not reveal any errors or other basis for setting aside the RRT’s decision.  The grounds were said by the applicant to have been prepared by a migration agent Ms Lucy Wang of Suite 507, Level 5, 431-439 Sussex Street, Sydney.

10. The reasons of the RRT do not disclose any reviewable error involved in the refusal of a protection visa in favour of the applicant.  Clearly it may be readily inferred, the RRT considered the evidence placed before it to be inadequate for review of the delegate’s decision.  The applicant chose not to provide any further information or documentation to the RRT or to accept the invitation to attend the RRT hearing.  No error, jurisdictional or otherwise, is revealed by the terms of and reasons for the decision of the RRT.

11. The application should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             18 May 2004

The Applicant appeared in person
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004