NBCU v Minister for Immigration - [2005] FMCA 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCU v MINISTER FOR IMMIGRATION

[2005] FMCA 450

MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), s.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

NBCU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2419 of 2004

Judgment of:

Smith FM

Hearing date:

4 April 2005

Delivered at:

Sydney

Delivered on:

4 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms B Rayment

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2419 of 2004

NBCU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed in the Federal Court, but transferred into this Court's jurisdiction under s.483A of the Migration Act 1958 (Cth). It challenges a decision of the Refugee Review Tribunal dated

15 January 2004, and handed down on 11 February 2004. The Tribunal affirmed a decision of a delegate, refusing the applicant’s application for a protection visa.
Section 483A gives the Court, “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the jurisdiction of the Federal Court is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I do not have power to set aside the Tribunal decision unless I am satisfied that the decision was affected by jurisdictional error.
I do not have power to set aside the Tribunal decision and send the case back just because I think the applicant deserves a second hearing, nor do I have power, myself, to decide whether the applicant is a refugee or should be given a protection visa.
In the present matter the applicant arrived from China in August 2003, and soon after arrival lodged an application for a protection visa, assisted by a migration agent, Jack Meng Immigration. In a brief statement attached to the application, he said that he believed he would "definitely be persecuted" as a Falun Gong practitioner if he returned.
He claimed that he had started to practice Falun Gong in 1995, but:
…after the crackdown by Chinese Government on Falun Gong, all the practitioners' lives had changed upside down. All the activities were banned by the authorities. Because our group was a quite active group in my city, most of the group members were heavily prosecuted.
He said that he was “put into the detention centre for some time. In the detention centre I was beaten and interrogated”. He claimed to have been released after he agreed not to attend Falun Gong practice, but he was placed under surveillance. He said he “still clung to my Falun Gong practice at home”.
He claimed that after being reported to the police he was “taken to the local police station from my home. I do not want to mention how I suffered during those days. When I was finally released and went home, my wife scolded me…”. He said his business was forced to close down in 2002, and: “I had no other choice but to flee from China. With the help of my old friends, I managed to obtain a valid passport and a valid visa to travel to Australia”.
The delegate refused the application on 5 September 2003. In his reasons, which were sent to the applicant, the delegate said the claims lacked relevant details, particularly as to when and where the applicant was detained. The delegate thought this reflected adversely on the credibility of the applicant. The delegate also noted that the applicant had left China without hindrance from the authorities, and thought that he was not of adverse interest to the Chinese authorities at the time of departure.
The applicant lodged an application for review in the Refugee Review Tribunal on 22 September 2003, assisted by Jack Meng Immigration. He gave a home address in Lidcombe and a mailing address at Jack Meng's business address, and authorised correspondence to be sent to Jack Meng. His application provided no further details or submissions in support of his application, but said: “Please see my file at DIMIA”.
By letter dated 12 December 2003, the Tribunal told the applicant that it had considered the material before it, but “is unable to make a decision in your favour on this information alone”. The Tribunal invited the applicant to come to a hearing “to give oral evidence and present arguments in support of your claims”. He was told that the hearing would be on 14 January 2004, and that:
“If you do not attend the hearing, and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”.
It also asked the applicant to send to the Tribunal “any new documents or written arguments you want the Tribunal to consider”. The letter enclosed a "response to hearing invitation" form, which he was asked to submit.
The Court Book before me contains two responses lodged with the Tribunal. One of them has a handwritten date, 19 December 2003, but no signature, and ticks the box "Yes", showing a desire to come to a hearing. Another, dated the following day, 20 December 2003, does have the applicant's signature on it, and says:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow me or enable me to appear before it.
Somewhat confusingly that document is stamped received by the Tribunal on the date of its signature – that is, 20 December but the document dated the 19th is stamped received on 22 December 2003.
It appears that faced with these two responses, the Tribunal made itself available to conduct the hearing as notified, but that nobody attended. The Tribunal says in its reasons that it treated the document filed on the 22nd as a notice that the applicant had changed his mind and did intend to attend. I think that was a generous reading of the documents. The Tribunal says:
The applicants did not attend the hearing listed on 14 January 2004, and the Tribunal has no explanation for his failure to attend.
In accordance with s 426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has, therefore, been determined on the evidence available to the Tribunal.
In my view, the Tribunal was permitted by the Migration Act to proceed in that manner, and I can discern no unfairness in it doing so. The applicant has not put on any evidence suggesting that the Tribunal acted unfairly, although he has said things from the Bar table today which leave his understanding of the situation unclear. He did, however, agree that he did not attend the hearing, and that he had signed the document with his signature on it dated 20 December 2003.
In its reasons, the Tribunal said:
On the basis of the available information, the Tribunal is satisfied that the applicant is a citizen of The People’s Republic of China and that he is outside that country.
The Tribunal is satisfied that the applicant has been given proper opportunity to support his application both at the primary level as well as at the review stage. He has had an opportunity to put forward any supporting documentation. He was invited to a hearing and the Tribunal has no explanation for the applicant’s lack of attendance.
The applicant has made claims that are lacking in important details. He has not provided details pertaining to his practice of Falun Gong. In particular, he has not specified where he practised Falun Gong, not has he given an indication of the frequency of the claimed practice. Further, the applicant has not provided any corroborative evidence.
The lack of important details and corroborative evidence and the opportunity to explore the claims with the applicant, the Tribunal cannot be satisfied that the applicant is a Falun Gong practitioner. It follows that the Tribunal cannot be satisfied that at any time the applicant was detained, interrogated and beaten, nor can the Tribunal be satisfied that the applicant’s telephones were “tapped by the police” or that he was being stalked. For the same reasons, the Tribunal cannot be satisfied that his spouse had left him as a result, nor can the Tribunal be satisfied that he was “forced” to close down his business.
Accordingly, the Tribunal is not satisfied that the applicant has suffered any harm attributable to a Convention ground, nor is the Tribunal satisfied that that there is a real chance of such treatment occurring in the reasonably foreseeable future.
Therefore, I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention related reason.
I can see no error by the Tribunal in its reasoning. On all the material before me, I am unable to be satisfied that the Tribunal's decision is affected by jurisdictional error.
The applicant's application for judicial review was filed without any apparent legal assistance, and asserts that the:
RRT ignored parts of the applicant's claims in the statement attached to the application for the relevant visas submitted.
There is no substance to that allegation, as I have indicated above. The Tribunal considered the claims made by the applicant in his application, but was not satisfied by them.
The applicant attended before a registrar in April 2004, and was directed to file and serve an amended and fully particularised application, together with an affidavit in support containing any evidence he proposed to rely upon before the end of June 2004.
He did file an amended application on 10 May, but no other document has been filed in the Federal Court or this court. His amended application identifies no error in the Tribunal decision, but explains:
I have to stay in Australia because I will be persecuted by the Chinese government if I return to China.
This maintains his assertion of refugee status. However, as I have indicated to the applicant, it is not the function of the Court to decide his status.
The matter came before me on 28 January 2005, and I set the matter down for hearing today. I gave directions allowing the applicant to file written submissions if he wished. No submissions were filed.
The applicant appeared today without any prepared submissions to make to me. He said that all his papers had been given to his lawyer, who had told him that he would prepare all the documents, and file and serve them, but would not come to the Court. The applicant could not give me the name of the lawyer. The applicant sought only to tell me his claims to be a refugee, and was unable to identify jurisdictional error in the proceedings before the Tribunal.
For the above reasons I am not satisfied that the Tribunal's decision was affected by jurisdictional error, and I must dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 13 April 2005