NBBY v Minister for Immigration
[2005] FMCA 474
•30 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBBY v MINISTER FOR IMMIGRATION | [2005] FMCA 474 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of China – where Applicant did not attend the hearing of the Refugee Review Tribunal. |
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), s.475A
NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | NBBY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1010 of 2004 |
| Delivered on: | 30 March 2005 |
| Delivered at: | Sydney South |
| Hearing date: | 30 March 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1010 of 2004
| NBBY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 7 January 2004. It was handed down on 28 January 2004. In its decision the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant is a citizen of China. He arrived in Australia in December 2002. He had previously arrived in Australia and then had gone to New Zealand for about three days. He then returned to Australia. He left Australia and returned to China on 9 December and on the following day he left China and came back to Australia. He then applied for a protection visa. He claimed that he had a well grounded fear of persecution because he was a faithful Falun Gong practitioner. He said that he had been introduced to Falun Gong by a neighbour and he became one of the leaders at their centre. He said that the authorities in China outlawed Falun Gong on 22 July 1999. The police started to track down and arrest Falun Gong practitioners. He said in fact that he had been sacked from his job at a factory in September 1999. He said that he needed to escape observation by the police so he changed his address from time to time. He said, however, that on 22 July 2000 he had taken part in an assembly in front of a local government building.
As I said he made application for a protection visa. He had sought the services of a migration agent, a Mr Mi. He told the Court today that Mr Mi had become ill and he had to go to another migration agent, Mr Meng. Mr Meng has since stopped working as a migration agent.
The Applicant applied for review of the decision of the delegate of the Minister reviewing his application, he made application to the Refugee Review Tribunal. The Tribunal, in its letter of 28 October 2003, said that the Tribunal had considered the material in his application but was unable to make a decision in his favour on that information alone.
The Applicant was invited to attend a hearing of the Tribunal. That hearing was scheduled for 9 am on Friday 19 December 2003. The Refugee Review Tribunal sent one copy of their letter of invitation to the migration agent and one copy to the Applicant himself. No reply was received.
When the application was listed for hearing before the Refugee Review Tribunal the Applicant did not attend. Neither he nor his representative contacted the Tribunal. The tribunal decided to make a decision on the basis of the material already before it.
The tribunal considered the Applicant's claims and made certain findings. In particular the tribunal found that the Applicant's claim that he was a Falun Gung practitioner in China was little more than a bare assertion. The tribunal not surprisingly was unable to make a decision in the Applicant's favour. On page 53 of the Court book the tribunal sets out a number of matters that it would have liked to ask the Applicant about. As the tribunal member said in his decision:
These are all matters which could have been discussed at a hearing before the tribunal but as referred to above, the Applicant did not attend the scheduled hearing nor did he or his representative contact the tribunal to explain his failure to attend.
The tribunal was unable to be satisfied on the evidence before the tribunal that the Applicant was a Falun Gung practitioner or that he genuinely held a subjective fear of being persecuted for that reason if he returned to China. The tribunal made the decision to affirm the earlier decision not to grant the Applicant a protection visa. The Applicant has told the Court that his first migration agent became ill and his second migration agent no longer practices.
The application for review was according to the Applicant prepared by his migration agent. That may be why the application refers to the Applicant as “her” rather than “him”. All the Applicant says in the application is that in making its finding the RRT ignored parts of the Applicant's claims. As a result the applicant says that the Refugee Review Tribunal ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation.
It is more regrettable that the Applicant did not attend the tribunal hearing. He has said that his migration agent did not tell him. That may well be true. Unfortunately, applicants who do not attend a hearing of the Refugee Review Tribunal do not help their case by not turning up. I have read through the written submission by Mr Reilly of counsel who appears for the Respondent. It is quite clear that the Applicant's claim that the tribunal ignored parts of his claim cannot be established. Having read the decision of the Refugee Review Tribunal in full it is clear to me that the tribunal did consider all of the Applicant's evidence.
The Applicant says in his application that the tribunal could not reasonably have reached the decision that it did based on the evidence before it. This of course is no more than an invitation to the Court to conduct a merits review. This the Court cannot do. The authority for that is NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354 at [27].
It is well established by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that the Court cannot review the merits of the tribunal's decision. Even if the tribunal makes a wrong finding of fact the Court cannot overturn that decision, see Abebe v Commonwealth (1999) 197 CLR 510.
It is most unfortunate that the Applicant did not attend the tribunal hearing. If he had been able to attend he may have convinced the tribunal that his application should succeed. Where an Applicant does not attend the hearing of the tribunal it is very difficult for his application ever to succeed.
I find that there is no reviewable error in the decision. The application will be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 14 April 2005
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