NBBY v Minister for Immigration and Multicultural

[2005] FCA 973

FEDERAL COURT OF AUSTRALIA

NBBY v Minister for Immigration & Multicultural
& Indigenous Affairs [2005] FCA 973

NBBY v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

NSD 593 of 2005

LINDGREN J
7 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 593 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NBBY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	7 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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 593 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NBBY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	7 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 30 March 2005 (NBBY v Minister for Immigration [2005] FMCA 474). By that decision the FMCA dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was made on 7 January 2004 and handed down on 28 January 2004. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, ‘the Delegate’ and ‘the Minister’) not to grant to the appellant a protection visa.

   Background

2. The appellant, a citizen of the Peoples Republic of China, last arrived in Australia as a visitor on 11 December 2002.  He had originally arrived in Australia on 28 November 2002, then went to New Zealand on 30 November 2002, returning to Australia on 3 December 2002.  On 8 December 2002 he left Australia, returning to China on 9 December 2002, then left China on 10 December 2002, arriving in Australia the following day.

3. On 8 January 2003 the appellant applied for a protection (class XA) visa.  In a statement accompanying the application he said that he was applying for a protection visa because he was ‘a faithful Falun Gong practitioner’.  He said that he had been introduced to Falun Gong by a neighbour and that after a year he had become ‘one of the leaders in our [Falun Gong] centre’.  He said that after Falun Gong had been outlawed on 22 July 1999, the police had started to track down and arrest Falun Gong practitioners.  He said that he was sacked from his job as a carpenter at a factory in September 1999 and that he was self-employed as a carpenter from October 1999 until November 2002.

4. A particular event which he mentioned was his participation in an assembly in front of ‘our local government [building]’ on 22 July 2000.  He said that as a result, he was detained for 10 days and fined RMB 1000.  He claimed that the Chinese Government had gradually intensified the persecution of Falun Gong practitioners and that now no one was allowed to practise Falun Gong in public or in private.  He said he had come to realise that he would have to leave China if he wanted to continue his Falun Gong activity.

5. He said that he had paid nearly RMB 60,000 for a passport and visa.

6. In his original application form he explained that he had returned to China on 9 December 2002 ‘to terminate my friend’s sponsorship for me so that he has no responsibility for my leaving’.

7. The appellant stated in the application form that he could not provide documents in support of his claims because all relevant documents of Falun Gong were not permitted to be brought out of China.  The appellant did not provide evidence that he was practising Falun Gong in Australia.

8. The appellant did not appear at the hearing before the Tribunal on 19 December 2003. The Tribunal had written to the appellant in a correctly addressed manner on 28 October 2003. In fact, the invitation was sent to the appellant care of his migration agent and also to his home address. Sections 425A and 441A of the Migration Act 1958 (Cth) (‘the Act’) were complied with. The Tribunal decided to proceed with the hearing in the appellant’s absence, as s 426A of the Act allowed it to do.

9. The Tribunal member referred in his reasons for decision to various matters on which he would have sought explanations from the appellant if the appellant had appeared.  The expression, ‘He does not explain why...’ appears several times in the Tribunal Member’s reasons for decision.  The Tribunal member declared himself not satisfied on various claims made by the appellant and, in conclusion, was not satisfied that the appellant had a well-founded fear of being persecuted for a Convention reason if he were to return to China.

10. The appellant did appear before the FMCA.  He explained to the Federal Magistrate that his migration agent had not told him about the hearing before the Tribunal.  In the appellant’s application for review in the FMCA, the appellant asserted that the Tribunal had ignored parts of his claims in the statement attached to the application for the protection visa and reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation, giving rise to jurisdictional error.

11. The learned Federal Magistrate saw no substance in those grounds and thought that the appellant was inviting the Court to conduct a merits review.

12. Before this Court, the appellant relies on these two grounds of appeal:

    ‘1.The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

    2.        The decision involves errors of law.’

13. The appellant also provided a written submission to this Court setting out what the submission describes as ‘grounds of the application’ in four paragraphs as follows:

    ‘1.Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

    2.The applicant has experienced serious harm in his home country and a systematic and discriminatory conduct by the authorities in his home country.  The applicant therefore, falls into the definition of section 91R(1) of the Migration Act 1958 (Cth).

    3.When making a decision the Refugee Review Tribunal has overlooked some of the claims the applicant has made and reached a decision due to this failure to look at those claims, which otherwise would not have been reached.  The Tribunal has made a jurisdictional error in this respect.

    4.In the light of judicial consideration of this issue, it is the applicant’s view that the reasoning and the finding of the Refugee Review Tribunal is incorrect and should be redressed according to law.’

14. On the hearing today, I asked the appellant if he wished to say anything in support of the appeal and he said that he did not wish to do so.

15. The two grounds of appeal and the four paragraphs quoted above in various ways ask the Court to revisit the  application for a protection visa, or, to use the words of the Federal Magistrate, to conduct a ‘merits review’ (at [11]).  This role is not one assigned by the legislature to this Court any more than it is to the FMCA.

16. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             18 July 2005

The appellant appeared in person.
Solicitor for the respondent:	Ms B Rayment, Sparke Helmore
Date of Hearing:	7 July 2005
Date of Judgment:	7 July 2005