NBGD v Minister for Immigration - [2005] FMCA 654

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBGD v MINISTER FOR IMMIGRATION

[2005] FMCA 654

MIGRATION – RRT decision – Chinese claiming persecution under ‘one child’ policy – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), s.425(3), 426A(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

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

Applicant:

NBGD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2149 of 2004

Judgment of:

Smith FM

Hearing date:

9 May 2005

Delivered at:

Sydney

Delivered on:

9 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Riley

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2149 of 2004

NBGD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to the Federal Court of Australia under s.39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal dated 25 March 2004 and handed down on 20 April 2004. The Tribunal affirmed a decision of the delegate of the Minister refusing an application for a protection visa. The application has been transferred to this court by order of Whitlam J on 24 May 2004.
This court is given the same jurisdiction as the Federal Court in the matter by reason of s.483A of the Migration Act 1958 (Cth). The power of both courts to give relief under s.39B is subject to limitation under Part 8 of the Migration Act. As interpreted by the High Court of Australia 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 and remit the matter unless I am satisfied that the decision was affected by jurisdictional error.
The court itself does not have power to decide whether the applicant satisfies the definition of refugee in the Refugees Convention, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
In the present case the applicant arrived from China in December 2003. On 5 January 2004 he lodged an application for a protection visa assisted by an agent, Jack Meng. The application attached a short statement setting out claims for protection by Australia. The applicant claimed that he was the father of four children born in 1979, 1982, 1984 and 2002. He said that before the fourth child was born he had been penalised as a result of being labelled by the government as a bad citizen. He said:
However, my family survived despite the unfair treatment by the government.
He said that when his fourth child was born in 2002:
We were immediately approached by the local government and were forced to pay RMB40,000 to have the child's household registered. They also forced me to conduct a sterilisation operation, which I strongly refused. I ran away to avoid the operation, and neither did my family to pay fine. I fled China in the way mentioned above. My passport is now kept by the tourist guide.
A delegate refused the application on 12 January 2004 drawing attention to the fact that the applicant had not provided evidence to substantiate any of his claims.
The applicant lodged an application for a review by the Refugee Review Tribunal on 30 January 2004 with the assistance of Jack Meng. He authorised Mr Meng to be the recipient of correspondence and to act on his behalf in relation to the case. No further information was presented to the Tribunal in the application, and it merely said: “Please see my statement at DIMIA”.
By letter dated 11 March 2004 the Tribunal invited the applicant to attend a hearing. The letter was sent to the applicant and to his agent at the agent's address, which the applicant had shown as his mailing address, and was also sent to the applicant's home. In the letter the Tribunal said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
It informed the applicant that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision in his case without further notice. It also asked him to complete an enclosed "response to hearing invitation" form.
On 24 March 2004 the form was lodged with the Tribunal bearing the applicant's signature, as he has confirmed today. It said in answer to the question: “do you want to come to a hearing?”:
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 or enable me to appear before it.
As a result of that communication, the applicant was not entitled to appear before the Tribunal (see s.425(3) of the Migration Act).
In any event, the Tribunal delayed its decision until after the date of the hearing which it had appointed, and the applicant has confirmed today that he did not attend on that day. By reason of s.426A(1) the Tribunal was then entitled also to proceed without taking further action to allow or enable the applicant to appear.
The Tribunal did proceed to make a decision without taking further action. It referred to the applicant's claims and reasoned as follows:
Mr Zhao appears to fear that he will be fined and required to undergo sterilisation if he returns to China because he and his wife recently had a fourth child. As noted in the delegate’s decision, China’s family planning regulations are, broadly speaking, applied equally to the parents of children whose birth does not have the approval of the authorities. Mr Zhao’s fears thus appear to relate to the consequences of breaching a law of general application, and therefore his case noes not appear to be covered by the Convention.
If Mr Zhao had attended the hearing it would have been possible to discuss these matters more thoroughly. However, he declined the Tribunal’s invitation to come to the hearing and on the evidence currently before me I am not satisfied that he has a well-founded fear of persecution for a Convention reason because he and his wife breached China’s family planning regulations or for any other reason.
In my view, the Tribunal was entitled to proceed in the manner in which it proceeded and there was no unfairness in it doing so.

I consider that its decision should be understood as proceeding, not upon any legal opinion as to the effect of the Convention definition in relation to the claims made by the applicant, but upon a failure to be satisfied as to his claims without the assistance of further evidence given at a hearing. I consider the Tribunal's reasoning when affirming the decision reveals no jurisdictional error.
In his application filed in the Federal Court the applicant claimed that:
I have found that the Refugee Review Tribunal has not reviewed all my claims and not have all my issues addressed. This failure to address all the issues concerned have made the Tribunal made erred in law and conducted a jurisdictional error.
I can find no basis for the allegation the Tribunal did not review the claims made by the applicant. I reject that ground of review.
In his amended application the applicant did not frame any criticism of the Tribunal in a manner identifying jurisdictional error. It made two points, firstly:
I am a genuine protection seeker as my wife and I gave birth to four children in China where I will be persecuted by the government.
However, as I have explained to the applicant, it is not the function of the court to address afresh his claims for protection. This point does not raise a jurisdictional error.
The second point made in the amended application is:
The refusal decision is not fair in that it disables me to remain in Australia and to avoid being persecuted in China.
This also is an assertion of refugee claims, and does not identify jurisdictional error in the decision of the Tribunal.
At the hearing before me today, the applicant agreed that he had not attended the Tribunal hearing, and repeated his hope not to be sent back to China. When asked to identify some error by the Tribunal which might be a jurisdictional error, he said that there was nothing he could say.
For the above reasons, the applicant has not made out any ground allowing me to give relief, and I have not on my own reading of the papers been able to identify any such ground. I must dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 May 2005