NBHP v Minister for Immigration - [2005] FMCA 998

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHP v MINISTER FOR IMMIGRATION

[2005] FMCA 998

MIGRATION – RRT decision – Tribunal dispensed with hearing after receiving consent – whether applicant attempted to withdraw consent – Tribunal not obliged to wait until appointed hearing – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 420, 424, 424A, 424C(1), 424C(2), 425, 425(1), 425(2)(a), 425(2)(b), 425(2)(c), 425(3), 426A, 426A(1)(b), 427, 428, 429, 429A, 430B(4), 474(1), 483A, Pt 8

Applicant:

NBHP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2394 of 2004

Judgment of:

Smith FM

Hearing date:

20 May 2005

Date of Last Submission:

24 June 2005

Delivered at:

Sydney

Delivered on:

29 July 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms K Morgan

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2394 of 2004

NBHP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application was made under s.39B of the Judiciary Act 1903 (Cth) to the Federal Court of Australia on 21 June 2004, and was transferred to this Court by order of Bennett J on 14 July 2004. The application seeks orders setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 May 2004 and handed down on 27 May 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
This Court has concurrent jurisdiction with the Federal Court in matters such as the present under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). The jurisdiction of both courts is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 998
Decision Date: 29 July 2005

CaseChat Overview and Summary

In the case of NBHP v Minister for Immigration, the applicant, a Chinese national, sought judicial review of a decision made by the Migration Review Tribunal (MRT) and affirmed by the delegate of the Minister for Immigration. The applicant arrived in Australia on a temporary visitor visa in March 2004 and subsequently applied for a protection visa, which was refused. The applicant claimed that he faced persecution in China due to his political beliefs and was unable to survive in his home country. The primary legal issues for the court were whether the Tribunal had jurisdiction to hear the matter and whether the Tribunal had made a jurisdictional error in its decision-making process.

The court examined the jurisdictional constraints imposed by s.483A of the Migration Act and found that it did not have the power to set aside the Tribunal decision unless it was satisfied that the decision was affected by jurisdictional error. The court held that it did not have the authority to decide whether the applicant qualified for a refugee visa. The court also noted that the applicant had provided little detail or supporting evidence in his application, and the Tribunal had correctly focused on the lack of detail in its decision. The court concluded that the Tribunal had jurisdiction to hear the matter and had not made any jurisdictional errors in its decision.

Based on the court's findings, the application for judicial review was dismissed, and the Tribunal's decision was affirmed. The court held that it did not have the power to set aside the Tribunal decision and send the matter back unless it was satisfied that the decision was affected by jurisdictional error. The court also held that it did not have the authority to decide whether the applicant qualified for a refugee visa. The orders of the court were that the application for judicial review be dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This Court has concurrent jurisdiction with the Federal Court in matters such as the present under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). The jurisdiction of both courts is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa. In the present case, the applicant arrived in Australia from China on a temporary visitor visa in March 2004. One week after his arrival, he lodged an application for a protection visa. Although the applicant told me that he was assisted by an agent, Mr Meng, at all stages in his matter and in this Court, no reference to an agent is made in the visa application nor in his later applications. His claims for protection from Australia were contained in a brief typed statement: I am 37 years old now, working as a section head in XXX factory. I did a lot of contributions to the factory, but unfortunately, due to the different political divergences with the government, I was forced to leave the position. It was really a big blow to me. However, what was worse was the government never stopped its persecution on me and the factory forced me to do a confession in written form. They warned me not to declare my political divergences again. All my family members were affected on this issue in their respective lives. Under this situation, I really can’t survive in China anymore. I know that in Australia people can live freely and pursue their own way of life. So please approve of my application. A delegate refused the application on 25 March 2004, drawing attention in his reasons to the absence of detail and supporting evidence. On 7 April 2004, the applicant lodged an application for review, which merely said: “Please see file at DIMIA”. The application gave a home address at Berala, and a mailing address at a post office box at Granville. On 15 April 2004, a new home address at Granville was provided by the applicant. This was also the home of an unrelated Chinese woman who also had a refugee application outstanding in the Tribunal, and who in other proceedings was given the pseudonym “NBHR”. She became a witness in the present matter, and it is convenient at this point to set out some uncontroversial facts concerning her matter taken from a judgment of Mowbray FM in NBHR v Minister for Immigration [2005] FMCA 477 (“NBHR”). His Honour found that by letter dated 27 April 2004 the applicant had been invited to a hearing by the Tribunal to be conducted on 27 May 2004. On 29 April 2004, the Tribunal received a “Response to Hearing Invitation” form stating that she did not want to attend the hearing. The Tribunal in her case signed a decision on 30 April 2004 affirming the delegate’s decision, and handed this down on 25 May 2004. In an application before Mowbray FM, the applicant on 9 March 2005 gave evidence that she had attended at the Tribunal on 4 May 2004 to request a hearing, but had been told that it was too late even though the decision in her case had not been handed down. His Honour accepted her evidence, and on 9 March 2005 remitted the matter to the Tribunal.