NBCJ v Minister for Immigration - [2005] FMCA 507

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCJ v MINISTER FOR IMMIGRATION

[2005] FMCA 507

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 RRT hearing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A, 477

Abebe v Commonwealth of Australia (1999) 162 CLR 510

Applicant:

NBCJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1098 of 2004

Judgment of:

Scarlett FM

Hearing date:

18 April 2005

Date of Last Submission:

18 April 2005

Delivered at:

Sydney

Delivered on:

18 April 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4000.00 and I allow 3 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1098 of 2004

NBCJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for a review of a decision of the Refugee Review Tribunal. The decision was made on 2 January 2004. It was handed down on 27 January 2004. The Tribunal decided to affirm the decision of a Delegate of the Minister not to grant a protection visa to the applicant.

Background

The applicant is a citizen of the Peoples Republic of China. She arrived in Australia on 16 March 2003. On 20 March 2003 she lodged an application for a protection visa. On 8 April 2003 a Delegate of the Minister refused to grant a protection visa to her. The applicant sought a review of that decision by the Refugee Review Tribunal.
When the applicant arrived in Australia she lodged her application for a visa. She consulted a migration agent. The agent was a Mr Jack Meng who is no longer in practice as a migration agent.
In her application the applicant said that she feared that if she returned to China she would be persecuted for the reason that she is a Falun Gong practitioner. The applicant is a nurse by profession. She was working in a hospital in Shanghai. In 1996, because of the pressure of work, she was suffering from constant headaches and low body energy. One of her colleagues introduced her to the practise of Falun Gong. The applicant took up this practice and found that her health had improved.
Unfortunately, the Chinese government commenced a crack down on Falun Gong practitioners. One day the police arrived at her home and took her into custody. They took her to a detention centre where other Falun Gong members were detained. She says that the police said that their activities were a disturbance of social order, sabotaging the rule of the Chinese Communist Party and instigating people to act against the Chinese government. The police would not let the applicant and other people go until they renounced the practice of Falun Gong.
When she was released the applicant did not practise Falun Gong in public. She only practised in the privacy of her own home. Unfortunately, in October 2001 the police arrived at her home and searched for Falun Gong materials. The applicant confessed that she was still practising Falun Gong. The applicant was placed on surveillance but that was removed after a year. The applicant did not practise Falun Gong during that time.
The applicant says she sought to escape from China to a safer place where she could practise Falun Gong safely. She went to Singapore in August 2002 and then went on to Australia. She said that for the first time she experienced religious freedom. She also says she has a genuine fear of returning to China.
On 8 April 2003 a delegate of the Minister refused the application for a protection visa. The applicant lodged her application for review on 8 May 2003.
On 30 October 2003 the Refugee Review Tribunal wrote to the applicant. The letter said in part that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in the applicant's favour based on that information alone. The Refugee Review Tribunal invited the applicant to attend a hearing. At the hearing she could give oral evidence and present arguments in support of her claims. The letter advised the applicant that the hearing would take place on 11 December 2003 at 10 am.
The applicant originally sent in a response saying that she did wish to attend the hearing. On 26 November the applicant's migration agent sent a further letter saying that the applicant was not going to attend the hearing. The letter stated that:
She wishes RRT to make a decision based on the information available.
The hearing did in fact take place and the Tribunal noted that the applicant did not attend. The Tribunal then determined the matter on the basis of the evidence then available to the Tribunal. The Tribunal had before it the Department's file which included the application for a protection visa and the Delegate's decision record. The Tribunal also had regard to the material referred to in the decision of the Delegate.
In the decision, which was relatively short, the Tribunal referred to brief details of the applicant's history and then to the applicant's account of her practise of Falun Gong in China. The Tribunal said that the Delegate's decision noted that the applicant's claims lacked detail and the Delegate did not accept that the letter about the removal of surveillance was genuine.
In the Tribunal's findings and reasons, the Tribunal said at page 57 of the Court Book that it was not satisfied on the information before it that the applicant had a well founded fear of persecution within the meaning of The Convention. This finding was based on the Tribunal's belief that the applicant's claims were vague and lacking in useful detail. The Tribunal was not satisfied that the applicant was entitled to a protection visa.
The applicant then filed an application to the Federal Court seeking a review of that decision. The Federal Court transferred the proceedings to the Federal Magistrates Court.
I have read the applicant's application. At paragraph 1 in part A of the application the applicant claimed that the RRT had ignored parts of her claims in the statement attached to her application for the relevant visa submitted. The applicant said that the RRT ignored parts of her claims and ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation. Those failures gave rise to an incorrect finding that the applicant was not entitled to a relevant visa and constituted jurisdictional error.
I have read the decision of the Refugee Review Tribunal. It is quite a short decision. I have also read the applicant's outline of submissions and I have read the respondent's outline of submissions. In her outline of submissions the applicant pointed out that she had prepared a written statement accompanying her protection visa application.
She gave three reasons in paragraph 3 of her outline of submissions. First she said that she was not willing and should be not able to return to her home country due to the strong likelihood that she would suffer from persecution from the authorities. She said that the activities she engaged herself in would put her in great danger if she returned to China. She further said that she had been living in Australia for quite some years and had been able to support herself independently. She has already adopted the Australian way of life and would make a good resident to the society.
The applicant went on to say that she has already uprooted herself from the society from which she came and she has no more social, economic or family ties with that society. She claimed that she was already past the prime of her years in life and it would be difficult for her to re-establish herself in China. She said that she sought humanitarian consideration to allow her to make a new living in Australia.
The applicant also attacked the decision of the Tribunal. She said that she strongly disagreed with the Tribunal's findings. She sets out the reasons why she disagrees with those findings; paragraph 4:
The applicant has provided details relating to her activities concerned. The applicant has provided dates and time that her activities were carried out. The applicant has explained as her activities were carried out. The applicant has provided supporting documents to the Tribunal during the period of review. Based on the documents provided to the Tribunal, the applicant has reiterated that the claims she made were Convention related and therefore there was a real chance of harm appearing in the reasonable foreseeable future.
I have read through the respondent's outline of submissions. In these submissions Mr McInerney of counsel made these points:
1.that the findings of fact made by the Tribunal were open on the material before the Tribunal;
2.inadequacy of the material before the decision maker concerning the attainment of the relevant state of satisfaction as to the criterion described in section 65 of the Act is insufficient in itself to establish jurisdictional error, see The Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR page 12 at paragraph 38;
3.the applicant's amended application raises no recognisable ground of jurisdictional error.
I have considered the Tribunal's decision and the other material. It is most regrettable that the applicant chose not to attend the Refugee Review Tribunal hearing. The applicant was aware or should have been aware from the letter sent to her that the Tribunal had already considered the material that she had submitted.
The applicant knew or should have known from the letter that the Tribunal did not consider that it could make a decision in her favour based only on the material she had provided. It should follow from that that it would have been very wise for the applicant to have attended the hearing.
She told the Court today that she was scared to do so. That is most unfortunate. If she had attended she may well have been able to take documents with her that supported her claim. She would have been able to give oral evidence about her case. She may well have been able to give evidence in an effort to persuade the Tribunal that she had a good claim for a protection visa.
There may have been some person she could bring as a witness to assist her case. The applicant chose not to do this. It is not surprising that, after considering the evidence the Tribunal was unable to make a decision in the applicant's favour.
I look at the application and the applicant's outline of submissions.

I have also read the decision of the Refugee Review Tribunal thoroughly because I am aware that the applicant is not represented by a lawyer.
I have made my own examination of the material in order to see whether there was any ground for judicial review of which the applicant may have been unaware. I have not seen any other ground for judicial review.
It seems to me that the hearing was conducted fairly. The applicant was invited to attend the hearing but she did not attend. This is not the fault of the Refugee Review Tribunal.
I note that the applicant claims that the Tribunal ignored parts of her claims in her statement. This in itself is not a ground of review.

A decision maker does not have to quote every single fact or every word of a party's material in making a decision. The applicant says that the Tribunal ignored relevant material or reached a decision it could not reasonably have been reached. I am not satisfied that any relevant material has been ignored based on the decision record before me.
It does not seem to me that the Tribunal reached a decision that was not reasonably open to it. I do not see that the Tribunal has reached a decision without a reasonable or rational foundation.
The evidence was relatively scant. The Refugee Review Tribunal seems to have considered what evidence there was. It is the function of the applicant to provide evidence to satisfy the Tribunal that her application should be granted. There is no obligation on the Tribunal to make its own independent inquiries in order to establish the applicant's case. In this regard I refer to the decision of Abebe v The Commonwealth of Australia (1999) 162 CLR 510.
The applicant's outline of submissions appear to ask for a review of the merits of her case. The matters contained in paragraph 3 of her outline of submissions are matters that would better have been put before the Refugee Review Tribunal. They do little to show why the Tribunal has made any jurisdictional error.
The applicant seeks a humanitarian consideration to allow her to live in Australia. The Court does not have the power to decide the case on those grounds. If the applicant wishes to have those matters considered she would be well advised to write to the Minister asking for consideration under s.417 of the Migration Act.
The Court has no power to deal with merit-based claims as it has long been established that the task of finding facts is a task solely for the Tribunal. The Court does not have the power to substitute its own views for the facts found by the Refugee Review Tribunal.
The applicant appears to be a pleasant, intelligent woman who is qualified as a nurse. She is polite and well dressed. She says that she would make a good resident in Australian society. She may very well be right. Unfortunately that is not a ground for judicial review and does not establish that she is entitled to a protection visa as a refugee.
The application must be dismissed.
The respondent seeks an order for costs fixed in the sum of $4000. In this jurisdiction costs usually follow the event. What this means is that the party who is unsuccessful in the proceedings is usually required to make a contribution towards the reasonable legal costs of the party who is successful.
The applicant says that she does not have much money at this stage. That may well be so but it is not a reason for the Court not to make a costs order. I propose to make an order for costs. The respondent seeks an order for costs fixed in the sum of $4000.
To my mind this is a sum that is well within the scale prescribed by the Federal Magistrates Court rules. It appears to be a reasonable figure and it is a figure that I will award. I do this taking into account the applicant's claim that she does not have a great deal of money at present. Normally costs would be payable within 28 days of the order being made. In the circumstances I am prepared to allow a period of time.
For these reasons I now make the following orders.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 3 May 2005