NBBV v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 846
•18 JUNE 2004
FEDERAL COURT OF AUSTRALIA
NBBV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 846NBBV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 188 of 2004
BRANSON J
18 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 188 of 2004
BETWEEN:
NBBV
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
18 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 188 of 2004
BETWEEN:
NBBV
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
BRANSON J
DATE:
18 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 19 February 2004 the applicant filed an application purportedly made under section 39B of the Judiciary Act 1903 (Cth). The application was not in a form prescribed by the Federal Court Rules but it appears intended to seek judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). Its only substantive content appeared under a heading ‘DETAILS OF CLAIM’. The information set out under that heading may well have been copied from an application made by someone other than the applicant. It refers to a finding not made by the Tribunal in the terms set out and it uses a female pronoun in respect of the applicant although the present applicant is male.
On 10 March 2004 Lindgren J, by consent, ordered the applicant to file and serve an amended and fully particularised application together with an affidavit in support of his claims. His Honour also ordered that should the applicant not comply with his Honour’s order the respondent’s solicitors could file and serve a notice of motion for summary dismissal of the application.
On 9 April 2004 the applicant filed an amended application. The amended application does not fully particularise the applicant’s application to the Court. The grounds of the application continue to show little, if any, relationship to the decision and reasons of the Tribunal. Although the applicant has today suggested otherwise, it appears to me that they were probably copied from another person’s application. They refer to a claim not made by the applicant; indeed, a claim that is inconsistent with the applicant’s case. The applicant did not file an affidavit in compliance with Lindgren J’s order. Nonetheless the respondent did not move for summary dismissal of the application. I return to this issue below.
Today the applicant has raised matters with me which go to the merits of his claim to be entitled to a protection visa. In particular, he has indicated that he hopes to obtain from China documentation that would show that the Tribunal ought not to have disbelieved some of his claims. As I have explained to the applicant, the possibility that the applicant might now be able to obtain further material in support of his claims is not a matter to which I can have regard in reviewing the decision of the Tribunal.
As the applicant does not have legal representation, I have given careful consideration to the decision and reasons for decision of the Tribunal. The reasons for the decision of the Tribunal disclosed that the Tribunal member gave careful and measured consideration to the claims of the applicant. The Tribunal accepted that he is a citizen of the People’s Republic of China. However it concluded, after careful consideration of the claims of the applicant, that his evidence was unsatisfactory in a number of respects.
It found that his evidence was marked by embellishment and overstatement. The conclusion of the Tribunal was that although the applicant has had some past difficulties and clashes with the Chinese authorities they are not ongoing. The Tribunal found that when the applicant left China, and thereafter, he was of no significant interest to the Chinese authorities. It found that he would not face a real chance of persecution for Convention reasons if he were to return to China.
On that basis the Tribunal concluded that the applicant is not a person to whom Australia owes protection obligations. I am not satisfied that the reasons of the Tribunal disclosed reviewable error of any kind. For those reasons the application must be dismissed.
It seems to me that it is regrettable that the respondent did not move for summary dismissal of the application, as Lindgren J’s order authorised her to do. The explanation offered today, that the respondent considered it appropriate to await the final hearing which was not long off, is an unsatisfactory explanation. The reason which clearly lay behind the order of Lindgren J was one intended to serve not only the Minister’s interests but also the public interest. In my view, it will ordinarily be appropriate for a Minister of the Crown to cooperate with the Court concerning matters touching on the public interest. Any future failure to do so where no satisfactory explanation is provided might be found to have significance should the Minister seek an order for costs in her favour.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 30 June 2004
Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: M Allars Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 June 2004 Date of Judgment: 18 June 2004
0
0
0