NBGN v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1180

FEDERAL COURT OF AUSTRALIA

NBGN v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1180

NBGN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N818 of 2004

JACOBSON J
6 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N818 OF 2004

BETWEEN:	NBGN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	6 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs of the proceeding.

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	N818 OF 2004

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

JUDGE:	JACOBSON J
DATE:	6 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review under section 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 27 April 2004. The RRT affirmed a decision of a delegate refusing to grant the applicant a protection visa.

2. The applicant is a citizen of the People's Republic of China; she claimed to have a well founded fear of persecution on the ground that she was a practitioner of Falun Gong.  Her claim under the Convention was therefore put on the basis of either or all of the grounds of religion, the political ground or membership of a particular social group. 

3. The RRT rejected the application because it found that the applicant was not a credible witness.  Indeed, the RRT found that her claims were fabricated.  It did so for two reasons.  The first was that it found that at the oral hearing before the RRT, the applicant showed a total lack of knowledge of Falun Gong.  The RRT said that it did not accept that anyone with even a basic association with Falun Gong could know nothing about it.

4. The second reason for the RRT’s decision was that the applicant's claims were said to be identical to another person's claims.  The RRT gave notice to the applicant in a letter dated 21 January 2004 that this was a reason, or part of the reason, for deciding the application against the applicant.  The letter stated that the earlier application pre-dated the applicant's application and, also, that the RRT was concerned that the applicant had copied the earlier claims.  The letter stated that the RRT was concerned that the applicant was not credible and that she had provided false and misleading information to the Department and to the RRT

5. The applicant responded to the RRT’s letter in a communication dated 16 February 2004.  The RRT states in its reasons that it took up with the applicant at the oral hearing the issue of the identical terms of the application to those of an earlier application.  However, the RRT found that the applicant's response, namely, that the claims were hers, was not plausible. 

6. Two grounds of review were set out in the application filed on 19 May 2004.  The first was that the RRT “failed to provide an opportunity to let the applicant fully explain her claims at the hearing”.  The second, which is related to it, is that in doing so the RRT failed to give the applicant procedural fairness. 

7. The applicant filed an amended application which does no more than recount her history and assert that she is a genuine practitioner of Falun Gong.  It states, in substance, that the RRT denied the applicant procedural fairness. 

8. The applicant appeared in person this morning.  She said that the RRTs finding that her statement was a copy of an earlier statement was not correct.  However, it is well established that it is not open to the court to review the merits of the RRT’s findings.

9. It is clear that the RRT gave the applicant an opportunity to comment on both of the issues upon which the RRT determined the claim adversely to the applicant.  It is therefore plain that the assertion of denial of procedural fairness is not correct.

10. There is nothing to suggest that the RRT failed to provide the applicant with an opportunity to fully explain her claims at the hearing.

11. It follows that the application must be dismissed.

12. The orders of the Court are that the application be dismissed and that the applicant pay the respondent's costs of the application.

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

Associate:

Dated:             9 September 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 September 2004
Date of Judgment:	6 September 2004