NBIJ v Minister for Immigration
[2005] FMCA 447
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIJ v MINISTER FOR IMMIGRATION | [2005] FMCA 447 |
| MIGRATION – RRT decision – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Part 8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
| Applicant: | NBIJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2494 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 31 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $3200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2494 of 2004
| NBIJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed in the Federal Court and transferred into this Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 May 2004 and handed down on 22 June 2004. The Tribunal affirmed a decision of a delegate of the Minister made on 23 January 2004 which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The Federal Court’s jurisdiction is a judicial review jurisdiction conferred in matters such as the present by s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I must be satisfied that the Tribunal’s decision was affected by jurisdictional error before I have power to set aside the Tribunal decision and send the matter back for further hearing.
The Court itself does not have power to decide if the applicant is a refugee or should be believed. I have no power to send the case back just because I have sympathy for the applicant, unless I can find a jurisdictional error.
In the present case, the applicant arrived in Australia in December 2003. On 24 December 2003 she applied for a protection visa assisted by a migration agent, Jack Meng. Attached to her application was a brief statement signed by the applicant.
In her statement she said that with her family she had been involved in the practice of Falun Gong. They gathered usually at their homes in winter time, and in the park on warmer days, and practised Falun Gong together. She said initially their practice had the support of local government, but in the autumn of 1999 the local police station “call us in and announced that we should not practice Falun Gong any more”. She said:
My family and I felt angry and sad at the same time. We returned home and had a meeting with other fellow practitioners to discuss what to do next. Most of us felt that Falun Gong has become part of our lives that we could by no means stop it. We would rather die than relinquish Falun Gong. So we kept practising Falun Gong in our usual place. The very first day after we were called in by the police, when we practised Falun Gong, we were detained by the police and taken to the police station. We were charged by the police and had to pay 1500 Chinese dollars in order to be released. My family had to pay such heavy fine.
As I said before, Falun Gong is my life so I cannot stop it. I kept on practising Falun Gong in private and I was later reported by someone I do not know who he is. The police this time came and sent me to detention center where I was tortured and abused.
I will provide details in this respect later on since today I just arrived in Sydney.
I have a fear to return to China because of my past sufferings. If I keep doing what I have been doing, I would certainly be put to prison. I ask the Australian Government to give me due protection.
At no time subsequent did the applicant “provide details in this respect”, nor any other supporting information or documents.
On 23 January 2004 a delegate refused the application, and a statement of his reasons was sent to the applicant and to her agent. The delegate’s reasons referred to country information concerning the position of Falun Gong practitioners in China, which suggested that the leaders and organisers of Falun Gong may be persecuted by PRC authorities if they were attributed with an adverse political opinion. However, the delegate was not satisfied that the applicant was persecuted in China because she was a Falun Gong practitioner. The delegate pointed out that she had had no difficulty obtaining a Chinese passport and had left the country legally. The delegate thought that the fact that a citizen of China exited the PRC lawfully provided a strong foundation for confidence that they were not of adverse interest to the Chinese authorities.
The applicant lodged an application for review by the Refugee Review Tribunal on 23 February 2004. Her application was lodged by Jack Meng Immigration and gave her own address as well as his address for mailing. In the section of the application inviting her to give reasons for making the application and to explain why she considered herself to be a refugee, the applicant merely said: “Please refer to my statement at DIMIA”.
A letter was sent to the applicant on 27 February 2004 by the Tribunal, acknowledging receipt of the application for review and informing her that she might be invited to a hearing. The letter said that a hearing was important because it was her opportunity to “give the Tribunal evidence to support your application”.
By letter dated 10 May 2004, the Tribunal invited the applicant to attend a hearing on 10 June 2004. The letter was sent to the applicant at her home address, as well as her other address. A copy was also sent directly to her agent, Jack Meng Immigration. It informed her that the Tribunal had considered the material, but was unable to make a decision in her favour on the information alone. It also informed her that the hearing was to allow her “to give oral evidence and present arguments in support of your claims”. It invited her to send any new documents or written arguments she wanted the Tribunal to consider. It enclosed a form asking her to notify the Tribunal of her response to the invitation.
The form was returned to the Tribunal, which received it on 16 May 2004. It is signed by the applicant. In answer to the question, “Do you want to come to a hearing?”, the applicant said:
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.
There is no evidence that the applicant ever sought to attend a hearing subsequent to lodging that document.
The applicant tells me today that she decided not to attend because she was worried that she would be arrested and sent back to China. I shall assume that it was true that she had this belief, although there is no evidence of this, nor that there was any basis for these fears. However, there is nothing in the material before me to suggest that the Tribunal unfairly denied the applicant an opportunity to attend the hearing.
I can find no breach of any procedure required to be followed by the Tribunal in how it proceeded.
In its decision, the Tribunal referred to the applicant’s statement which accompanied her visa application, which I have indicated above. The Tribunal noted the applicant’s advice that she did not want to attend and said: “This matter has therefore been determined on the evidence available to the Tribunal”.
In its findings and reasons, the Tribunal assessed her claims on the basis that she was a citizen of the People’s Republic of China. The Tribunal pointed out that the applicant had not provided sufficient details relating to her practice of Falun Gong, and had made vague allegations that she had “been tortured and abused”, but had not explained how she was tortured and abused. It noted that she had never provided details as promised.
The Tribunal said that it could not be satisfied on the available information that she had ever been a Falun Gong practitioner, nor that she or any other member of her family had ever been arrested or sent to a detention centre, nor that she had been abused and tortured. The Tribunal said:
In sum, the applicant’s lack of provision of specific and verifiable information with regard to the claims has meant that the Tribunal could not be satisfied, on the evidence before it, that the applicant had suffered any Convention‑related harm or that there is a real chance of such harm occurring in the reasonably foreseeable future.
The Tribunal was not satisfied that she had a well‑founded fear of persecution as contemplated by the Convention and affirmed the delegate’s decision.
The applicant filed in the Federal Court of Australia on 13 July 2004, an application under s.39B of the Judiciary Act. It was transferred to this Court by Stone J on 5 August 2004, and I have above indicated the jurisdiction of the Court in relation to the matter.
In her application she said as follows:
A. DETAILS OF CLAIM
1.The Refugee Review Tribunal (the Tribunal) has failed to realize the danger I am facing if I am forced to return to my home country. The Tribunal has failed to recognize that I am a real Falun Gong Practitioner in China. My claim of fear and the chance of persecution I raised for review were not properly dealt with. The strong likelihood of persecution I am facing has been ignored by the Tribunal.
2.The Tribunal has failed to assure me of the safety issue when I attend the hearing arranged by it.
In relation to paragraph 1, I am unable to read the complaint as being more than a complaint that the Tribunal reached the wrong decision on its merits. There is no substance to any suggestion that the Tribunal did not consider the claims made in the visa application. I cannot find a ground of jurisdictional error arising from this complaint.
In relation to paragraph 2, the complaint is difficult to understand since it seems that the applicant never made contact with the Tribunal about her fears on “the safety issue”, but merely told it that she did not wish to attend. As I have indicated, I have not been satisfied that the Tribunal’s decision to proceed without attempting to make further contact with the applicant was in breach of any procedural obligation on the Tribunal.
The applicant was directed by a Registrar to file an amended application and any affidavits in support by 12 November 2004. On 18 October 2004 she filed a document called “Amended Application” which stated as follows:
I.The fact:
1)I am a citizen of the P. R. China. I arrived in Australia on 16 December 2003 and applied for a Protection Visa with DIMIA on 24 December 2003, but a delegate refused to grant me a protection visa afterwards.
I applied to Refugee Review Tribunal for review of that decision and the Refugee Review Tribunal affirmed the decision of the Immigration Department on 21 June 2004.
I am a Falun Gong practitioner. I was introduced to Falun Gong through friends and the exercises made me stronger and healthier. After Falun Gong was declared “an anti‑government organization”, some of my friends were put into jail. I am worried once I return to China because I will be facing persecution.
II.Claim:
1)The decision made by the RRT is unfair to me because I am sure that I will be persecuted by the Chinese government once I return to China. The decision the RRT made should be based on a fair basis. They should take all the matters into consideration and give me a favourable decision.
These paragraphs make complaints about the fairness of the Tribunal’s decision based on the assertion that she is “sure that [she] will be persecuted”. The applicant’s criticisms of the Tribunal’s decisions made to me today orally amount to the same complaint, and were accompanied by the same assertions. However, in effect, these are complaints only about the merits of the Tribunal’s decision, and they are not turned into jurisdictional errors by describing the outcome as “unfair”.
As I have attempted to explain to her, the applicant’s complaints do not allow me to set aside the Tribunal decision and order a further hearing in her case.
Taking into account all the material before me and the submissions of the applicant, I am unable to find that the Tribunal decision is affected by jurisdictional error.
I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $3200.
I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 12 April 2005
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