NBDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1318

FEDERAL COURT OF AUSTRALIA

NBDB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1318

MIGRATION – judicial review of a decision of the Refugee Review Tribunal - dismissed

Judiciary Act 1903 (Cth)

NBDB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 414 of 2004

HILL J
SYDNEY
7 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 414 OF 2004

BETWEEN:	NBDB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	7 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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	N 414 OF 2004

BETWEEN:	NBDB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	7 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. The applicant applies to the court pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant to her a protection visa.

2. The applicant is a citizen of the Peoples Republic of China.  She arrived on a visitor's visa in May 2003 and shortly thereafter applied for a protection (class XA) visa. 

3. Generally speaking it can be said that it is a criterion of such a protection visa that the applicant be a person to whom the Minister is satisfied that Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as affected by the 1967 Protocol Relating to the Status of Refugees ("the Refugees Convention").

4. Again, generally speaking it can be said that Australia has protection obligations to persons who are refugees as defined in article 1A(2) of the Refugees Convention.  That article relevantly defines a refugee as a person who:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...”

5. In her application for a protection visa the applicant stated that she had started to practise Falun Gong in 1994.  She joined a Falun Gong group and said she attended activities in the neighbourhood regularly.  She claimed that her misfortune started after the crack down by the Chinese government on Falun Gong.  She said that she became the target of persecution in her neighbourhood and that the police showed up at her home and caught her.  She said she was put in a detention centre and accused of disturbing social order, sabotaging the rule of the Chinese Community Party and instigating people to act against the Chinese government.

6. She claimed to have been tortured and beaten severely.  She said that she had been interrogated and given no food or water when her answers were not regarded as being satisfactory.  Other people around her were also tortured and in some cases disappeared suddenly.  It seems that her husband paid a fine of RNB5000 to secure her release.  As part of that arrangement she signed a guarantee she would not join any Falun Gong activities again.  She said that she felt under much psychological pressure and was on the verge of a breakdown.

7. She thus made the decision to flee to Australia.  With the help of other Falun Gong practitioners she obtained a passport and Australian visa.  She claimed a fear of being persecuted by the authorities which was well-founded and which related to a convention ground, namely religion.

8. Her application was refused by a delegate of the Minister.  Among the delegate's reasons for refusing the application was the fact that the applicant had not provided any supporting evidence to substantiate her claims or any detail whatsoever in respect of them other than the written statement which I have summarised.  There were no details such as names, dates, times or places. 

9. After her application was refused by a delegate of the Minister the applicant applied to the Refugee Review Tribunal for review of that decision.  On 10 November 2003 the Tribunal advised her that it had considered her application but that it was unable to make a decision in her favour on just the information she had provided.  It accordingly invited her to attend a hearing of the Tribunal to give evidence and present arguments.

10. In a response to a hearing invitation form, which accompanied that letter and which ultimately the applicant returned to the Tribunal, she was asked if she needed an interpreter.  That question was not answered by her.  However, she indicated in the document that she did not want to come to the hearing and thus consented to the Tribunal making a decision on the review without her taking any further action.  In those circumstances it is not particularly surprising that the Tribunal in due course rejected her application.

11. The Tribunal's reasons summarised the claims to which I have already referred.  It noted that if in fact the applicant had been mistreated as she said she was, she would be able to give substantial details about what had happened.  It noted that she had been continuously employed in Shanghai in a good job without suffering demotion, a fate which ordinarily happened to Falun Gong practitioners.  It noted too that she had not left for Australia until 2003, notwithstanding that she had obtained a passport in 2001 and presumably if really in fear of persecution she might be expected to have left China somewhat sooner than she did.

12. The Tribunal observed that on the limited evidence which the applicant had given, it could not be satisfied that her claim was true or that she had in fact suffered the harm and/or mistreatment which she claimed.  It found that she did not have a well-founded fear of persecution within the meaning of the Refugees Convention and was thus not a refugee as defined.

13. The applicant then sought judicial review under s 39B of the Act in this court. Before me she was not legally represented although she had the benefit of an interpreter.

14. It is necessary for applicants who obtain relief under s 39B of the Act to show that the Tribunal made a jurisdictional error. I understand of course the difficulty of an applicant untrained in legal matters to understand what that means, particularly when her first language is not English and indeed when she would not appear to be in any way conversant with English.

15. Before me the applicant said that everything she had said in her visa application was true, that she had really been persecuted in China and now that she was in a democratic country she hoped to be able to stay here.  She said that if she were forced to return to China she would experience lots of trouble and that the safety of her life would not be guaranteed, by which I understood her to mean that her safety would be threatened.

16. She complained that the Tribunal did not, “pay enough attention to people like us”.  By this I understood her to mean that if the Tribunal did pay sufficient attention it would accept that for her and others like her to have to return to China would create lots of problems for them.  She said also that the Tribunal did not, or perhaps the government did not provide the help “they should provide to us”. 

17. She complained that the Tribunal, or perhaps the government, did not make any investigation relating to her case, even though what she had claimed as to her fear of persecution was true.  She said that the government could help her to stay here and practise Falun Gong and if she had to return to China “lots of tragic things would happen”.

18. It is obvious that insofar as the applicant has any challenge to the decision of the Tribunal, it is a challenge as to the Tribunal's conclusion that she is not a refugee, not to any jurisdictional error which the Tribunal may have made. 

19. Because the applicant was not represented I have read carefully the decision of the Tribunal.  There is nothing in the decision which in any way suggests that the Tribunal made a jurisdictional error.  The applicant had already been alerted that she needed to give more information by the decision of the delegate.  That alert should have been reinforced when the Tribunal advised her that without more it could not make a decision in her favour.

20. Ultimately the question whether the Tribunal is or is not satisfied that a person has a well-founded fear of persecution is a matter for the Tribunal itself.  It is not a matter for this court.  No doubt by failing to attend the Tribunal hearing the applicant made it impossible for the Tribunal to ask her further questions which it may have wished to ask.  Be that as it may the applicant has not made out any ground for judicial review of the Tribunal's decision and it follows accordingly that her application must be dismissed with costs. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             28 October 2004

Applicant appeared in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 October 2004
Date of Judgment:	7 October 2004