NBGD v Minister for Immigration and Multicultural and Indigenous Affairs [2005]

[2005] FCA 1295

FEDERAL COURT OF AUSTRALIA

NBGD v Minister for Immigration & Multicultural & Indigenous Affairs [2005]

[2005] FCA 1295

NBGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD810 of 2005

EMMETT J
30 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD810 of 2005

BETWEEN:	NBGD APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

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	NSD810 of 2005

BETWEEN:

NBGD

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:

EMMETT J

DATE:

30 AUGUST 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of The People’s Republic of China.  He arrived in Australia on 27 December 2003.  On 5 January 2004, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 12 January 2004, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister), refused to grant a protection visa. On 30 January 2004, the appellant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 25 March 2004, the Tribunal affirmed the decision not to grant a protection visa. It notified the appellant of that decision on 20 April 2004.

2. On 10 May 2004, the appellant commenced a proceeding in this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. That proceeding was remitted to the Federal Magistrates Court. On 9 May 2005, Smith FM ordered that the proceeding be dismissed and that the appellant pay the Minister’s costs in the sum of $5,000. On 24 May 2005, the appellant filed a notice of appeal to this court from the orders of Smith FM.

3. In his original application, the appellant specified his grounds for claiming relief as follows:

   ‘I am very upset to receive the decision for the Refugee Review Tribunal.  I have put to my claims to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and given my reasons why I am entitled to a protection visa.  I have found that the Refugee Review Tribunal has not reviewed all my claims and to 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.  The Tribunal has not properly exercised its function and has not properly exercised its power as a statutory reviewing body.’

4. In his amended application, the appellant, after reciting the facts found by the Tribunal, simply asserted that the decision was not fair, in that it disabled him from remaining in Australia and avoiding persecution in China.

5. Before the Minister’s delegate, the appellant claimed that he had four children in China and that, following the birth of his fourth child, he was told that he must pay a fine before his child could be registered.  He was told that he must be sterilised and, because he did not want to be sterilised, he ran way.  His family have not paid the fine and his house has since been confiscated.  The appellant gave no further information to the Tribunal in his application for review.  Nor did he give any indication as to why he disagreed with the delegate's decision.

6. On 11 March 2004, the Tribunal wrote to the appellant, informing him that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that information alone.  He was invited to give oral evidence and present arguments at a hearing on 5 April 2004.  He was advised that if he did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  On 23 March 2004, the appellant responded to that invitation, stating that he did not want to come to the hearing. 

7. The Tribunal found that 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.  The Tribunal concluded, therefore, that the appellant's fears appeared to relate to the consequences of breaching a law of general application.  The Tribunal observed that, had the appellant attended the hearing, it would have been possible to discuss those matters more thoroughly. 

8. In his reasons, Smith FM concluded that the Tribunal was entitled to proceed in the manner in which it proceeded and there was no unfairness in doing so.  The application made no criticism of the Tribunal’s finding.

9. The notice of appeal to this Court contains three grounds as follows:

   ‘1.The appellant contended in the FMC that the Refugee Review Tribunal (‘the Tribunal’) failed to deal with a claim by the appellant that he feared persecution in connection with his desire to publicise information about the regulation of religion by the Chinese government.  The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter.  The FMC erred in making this finding.

   2.The appellant contended in the FMC that the Tribunal fell into jurisdictional error in relying upon historical country information rather than up to date information, in relation to the attitude of China to return protection visa applicants.  The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter.  The FMC erred in making this finding.

   3.The appellant contended in the FMC that the Tribunal based its decision on country information which it did not put to the appellant.  The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter.  The FMC erred in making this finding.’

10. It is apparent that the notice of appeal was borrowed from some other proceeding.  No such contentions were advanced in the Federal Magistrates Court and there is no substance in them.

11. The basis for the Tribunal’s decision was that the detriment suffered by the appellant was the consequence of his breach of a law of general application.  The Tribunal made no error in making the observations that it did make about China’s family planning regulations.  (see Applicant A v The Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225).

12. There was no error on the part of Smith FM.  The appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             21 September 2005

The Appellant appeared in person
Counsel for the Respondent:	Mr J Miller
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005