NBCJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 701

FEDERAL COURT OF AUSTRALIA

NBCJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 701

NBCJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 621 of 2005

WILCOX ACJ
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 621 of 2005

BETWEEN:	NBCJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

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 621 of 2005

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

JUDGE:	WILCOX ACJ
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX ACJ:

1. This is an appeal against a decision of Federal Magistrate Scarlett dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed the appeal be heard and determined by a single judge of the Court.

2. The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refusing to grant to the appellant a protection visa.  The appellant was notified of the opportunity of an oral hearing before the Tribunal but she elected not to attend.  Accordingly, the Tribunal dealt with the review on the documentary material that had been placed before it.

3. The Tribunal accepted that the appellant is of Chinese nationality.  The Tribunal noted that the appellant claimed to be a Falun Gong practitioner and to be vulnerable to persecution on that account if she returned to China.  However, the Tribunal found the claims made by the appellant so imprecise that it could not be satisfied, at least in the absence of an oral hearing, of the fact that she had a well‑founded fear of persecution on that account. 

4. When the matter came before the Magistrate, the appellant appeared on her own behalf.  She was assisted by an interpreter.  The appellant put various matters to the Magistrate, none of which seems to have raised an issue about jurisdictional error.

5. In this Court, the appellant has again represented herself, again assisted by an interpreter.  The appellant told me she does not wish to return to China because, at her age, it would be difficult for her to get employment.  She also said she is happy in Australia and can support herself, so she would not be a burden on government welfare. 

6. I accept that the appellant would like to stay in Australia and is capable of supporting herself.  No doubt she could make a contribution to this country.  However, as I pointed out to the appellant, those factors do not allow the Court to intervene.  The Court can interfere with the Tribunal’s decision only if satisfied the Tribunal made an error of law or failed to follow proper procedures.

7. When I asked the appellant whether she had any submission about any error of law or procedure to put to the Court she said she would like to get a lawyer.  She asked for an adjournment for that purpose.  I did not accede to that request.  The Tribunal's decision was given on 2 January 2004, almost 17 months ago.  The appellant apparently took no steps to obtain legal advice between that date and the hearing before the Magistrate, on 18 April 2005.  The Magistrate dismissed her application for review on 18 April, over six weeks ago, but she has not obtained legal advice in that time.  Having regard to that history, it would be inappropriate for me to grant further time to the appellant.

8. Nothing has been put before me to indicate jurisdictional error.  Nothing to that effect was put before the Magistrate.  I have myself considered the Tribunal's reasons for decision and I see no arguable jurisdictional error in those reasons. 

9. The appeal is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:             2 June 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Ms B Rayment of Sparke Helmore
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005