NBIJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 787

FEDERAL COURT OF AUSTRALIA

NBIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 787

NBIJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 595 of 2005

SACKVILLE J
14 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 595 OF 2005

BETWEEN:	NBIJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 JUNE 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	NSD 595 OF 2005

BETWEEN:	NBIJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an ex tempore judgment of the Federal Magistrates Court given on 31 March 2005.  The Magistrates Court rejected a challenge to a decision of the Refugee Review Tribunal (‘RRT’) handed down on 22 June 2004.  The RRT affirmed the decision of a delegate of the respondent (‘the Minister’) made on 23 January 2004 refusing to grant the appellant a protection visa. 

2. The appeal is without legal merit.  I shall briefly give my reasons for reaching this conclusion.

3. The appellant is a citizen of the People’s Republic of China (‘PRC’).  She arrived in Australia in December 2003.  On 24 December 2003, she applied for a protection visa.  Her application was prepared with the assistance of a migration agent. 

4. The application was accompanied by a brief statement signed by the appellant.  In that statement, she claimed that she had practised Falun Gong in the PRC.  The appellant said that initially the practice created no difficulties, but in 1999 the local police informed her and her fellow practitioners that they should not practise Falun Gong any longer.

5. Faced with this demand, the appellant claimed that she continued to practise Falun Gong.  In consequence, she and others were detained by the police and had to pay a heavy fine in order to be released.  After this experience, the appellant continued to practise Falun Gong in private, but was reported to the authorities.  This led to her being sent to a detention centre, where she was tortured and abused. 

6. The statement accompanying the application stated that the appellant would provide further details in due course on the torture and abuse she was said to have experienced.  In fact, the appellant never provided any further details or, indeed any material supporting her claim. 

7. On 23 January 2004, the delegate refused the appellant’s application and sent a statement of reasons to her and to her agent.  The delegate pointed out, among other things, that the appellant had no difficulty obtaining a Chinese passport and had left the country legally.  This indicated that her activities were not of adverse interest to the Chinese authorities. 

8. The appellant duly lodged an application for review by the RRT.  The application was lodged on her behalf by the same migration agent and gave the appellant’s address, as well as the agent’s address for the service of documents.  The application for review by the RRT added nothing to the skimpy claims already made by the appellant.  In the section of the application inviting her to give reason for seeking review of the delegate’s decision by the RRT, she merely said ‘Please refer to my statement at DIMIA’.

9. On 27 February 2004, the RRT sent a letter to the appellant acknowledging receipt of her application and informing her that she might be invited to a hearing.  Such an invitation was extended by letter dated 10 May 2004.  The letter was sent to the appellant’s migration agent, with a copy sent to the appellant at her home address.  The letter informed the appellant that the RRT had considered the material provided by her, but was unable to make a decision in her favour on that information alone.  The letter also informed her that the hearing, which was to be held on 10 June 2004, was to enable her ‘to give oral evidence and present arguments in support of [her] claims’. 

10. The form enclosed with the letter was returned to the RRT and was signed by the appellant.  In answer to the question ‘Do you want to come to hearing?’, the appellant had ticked a box indicating that she agreed with the following statement:

    ‘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’.

11. Not surprisingly, in these circumstances, the RRT rejected the appellant’s application.  It pointed out that the appellant did not provide sufficient details relating to her practice of Falun Gong.  Nor had she provided details about the dates upon which she was allegedly detained.  She had merely made vague allegations that she had been ‘tortured and abused’, but had not explained how this had occurred.  Any assertions made by the appellant were unsupported. 

12. The RRT made the following findings:

    ‘On the basis of the available information and in view of the lack of details, the Tribunal cannot be satisfied that the [appellant] has ever been a Falun Gong practitioner, nor can the Tribunal be satisfied that either she or any other member of her family has ever been arrested or sent to a detention centre.  It follows that the Tribunal cannot be satisfied that the [appellant] has been abused and tortured. 

    In sum, the [appellant’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 [appellant] had suffered any Convention-related harm or that there is a real chance of such harm occurring in the reasonably foreseeable future’.

13. The appellant was unrepresented before the Magistrates Court.  The amended application filed in that Court asserted that the RRT’s decision was unfair because the appellant was sure that she would be persecuted if she returned to the People’s Republic of China. 

14. The Magistrate, in his judgment, said that the appellant’s oral submissions were, in essence, complaints about the merits of the RRT’s decision.  He held that these complaints provided no basis for concluding that the RRT had committed a jurisdictional error in reaching its conclusion.  The Magistrate noted that the appellant had asserted that she had not appeared before the RRT because she was afraid.  However, there was no evidence to that effect.  In any event, he was satisfied that the RRT had followed the procedures prescribed by the Migration Act 1958 (Cth).

15. The notice of appeal to this Court asserts that the RRT failed to comply with procedures that are required by law to be observed and that the RRT’s decision involved errors of law.  No such errors are identified.  Nor does the notice of appeal identify the procedures that the RRT is said to have overlooked or ignored.  The appellant’s written submissions do not advance her appeal, since they merely contain general assertions. They do not identify any particular error said to have been committed by the RRT or the Magistrate.

16. No basis has been shown for suggesting that the Magistrate fell into error in dismissing the appellant’s application for judicial review.  The appeal must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            14 June 2005

The appellant appeared in person
Counsel for the Respondent:	R. A. Pepper
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	10 June 2005
Date of Judgment:	14 June 2005