NBBE v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1062

FEDERAL COURT OF AUSTRALIA

NBBE v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1062

NBBE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N144 OF 2004

EMMETT J
24 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N144 OF 2004

BETWEEN:	NBBE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	24 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the respondent’s costs of the proceeding.

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	N144 OF 2004

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

JUDGE:	EMMETT J
DATE:	24 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia as a temporary business entrant in February 2003 and applied for a Protection Class XA Visa under the Migration Act 1958 (Cth) (‘the Act’) on 20 March 2003. That was two days before his temporary business visa expired. On 11 April 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused the application for a protection visa. The applicant then applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate's decision.

2. On 19 December 2003 the Tribunal affirmed the decision not to grant a protection visa. That decision was notified to the applicant on 15 January 2004. On 12 February 2004 the applicant commenced this proceeding in which he claims prerogative writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. The form of application was clearly adopted by the applicant from some precedent. It sets out his claim in the following terms:

   ‘1.The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa.  In making this finding, the RRT ignored parts of the applicant's claims in the statement attached to her application for the relevant visa submitted.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.

   2.The above jurisdictional error affected the exercise of power of the RRT.’  (Emphasis added)

3. The applicant is a male and it is clear, therefore, that the application was slavishly copied from some precedent.  No particulars are furnished in respect of the complaint contained in the application.  When the matter was called on for hearing today, the applicant indicated through an interpreter that he did not know what was going on.  When invited to make submissions in support of his application, he simply said that he would be arrested if he returned to China and that he wanted to stay in Australia.

4. If the decision of the Tribunal is a decision under the Act then, pursuant to s 474, it is not open to challenge in this court. The details of claim indicate some attempt to bring the decision within the principles espoused by the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. I have considered the reasons of the Tribunal for its decision. Those reasons record that, by letter dated 28 October 2003, the applicant was notified that the Tribunal was unable to make a decision in his favour on the material before it. The applicant was, therefore, invited to come to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims on 12 December 2003.

5. On 4 November 2003 the Tribunal received from the applicant a completed ‘Response to Hearing Invitation’ form advising that he wanted to come to the hearing.  However, the applicant did not attend the hearing, nor did he communicate with the Tribunal to explain his failure to attend.  The Tribunal, therefore, proceeded to make a decision on the basis of the material then before it.  That material consisted of the application to the Minister for a protection visa, a statement of six paragraphs in support of the application, and the application to the Tribunal.  The application to the Tribunal contained no further information.

6. In its reasons, the Tribunal observed that the applicant claimed to be an adherent of the underground religion known as Yi Guan Dao, which is unlawful in China.  The Tribunal considered that the applicant’s claim to be an adherent of that faith amounted to no more than an assertion.  The Tribunal observed that, while the statement accompanying the original application recited details of the persecution of Yi Guan Dao in China, it provided no details of the rituals to which the applicant claimed he and his parents adhered, nor does the statement provide any details on the basis of which the Tribunal considered that it could be satisfied that the applicant is an adherent of Yi Guan Dao, as he claimed.

7. Having regard to the failure of the applicant to attend the scheduled hearing before the Tribunal, the Tribunal was unable to be satisfied that he is an adherent of Yi Guan Dao, as he claimed.  The Tribunal was, therefore, not satisfied that there is a real chance that the applicant will be persecuted for reasons for his religion if he returns to China.  There does not appear to me to be any error in the reasoning of the Tribunal, much less an error that would constitute jurisdictional error.

8. On its face, the decision of the Tribunal is a decision under the Act. It is, therefore, a privative clause decision within s 474 and there is no basis upon which this Court can interfere with the decision. It follows that the application should be dismissed.

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

Associate:

Dated:            16 August 2004

The Applicant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 March 2004
Date of Judgment:	24 March 2004