NBIK v Minister for Immigration
[2006] FMCA 586
•10 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 586 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution as a Falun Gong practitioner – credibility – merits review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24 SZFHP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FMCA 1637 VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 |
| Applicant: | NBIK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2493 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 April 2006 |
| Date of Last Submission: | 10 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
Refugee Review Tribunal is joined as Second Respondent to the application.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2493 of 2004
| NBIK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refuge Review Tribunal. The Tribunal made its decision on 28th March 2004.
The Tribunal handed down its decision on 22nd June 2004.
The decision of the Tribunal was to affirm a decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of China. She arrived in Australia on
17th December 2003 and applied for a protection (class XA) visa a week later. After the application was refused on 23rd January 2004, the applicant applied to the Refuge Review Tribunal for a review of that decision.
The Tribunal wrote to the applicant on 25th March 2004 asking a number of questions about her history. The applicant replied in a letter that was received by the Tribunal on 19th April 2004. The Tribunal then wrote and invited the applicant to attend a hearing on
13th May 2004. The applicant attended the hearing and gave evidence claiming to fear that she would be persecuted by the authorities if she were to return to China because of her practise of Falun Gong.
The Tribunal, after considering the applicant's claims and considering independent country information, found that the applicant was a national of China and accepted that some Falun Gong practitioners in China have been persecuted by the authorities. However, after taking oral evidence from the applicant at the hearing, the Tribunal found that the applicant was not a truthful witness, and was not satisfied that she was a Falun Gong practitioner. The Tribunal set out what the Tribunal described as the problems with the applicant's evidence at pages 77 through to 82 of the Court book. The Tribunal concluded by saying at page 82:
Individually some of the above aspects of the applicant's evidence would not have led the Tribunal to reach an adverse conclusion about the applicant's credibility. However cumulatively they lead the Tribunal to find that the applicant was not a believable witness. For that reason the Tribunal finds that the applicant was not and is not a Falun Gong practitioner and has never come to the adverse attention of the Chinese authorities as a result of any Falun Gong practise or involvement.
The Tribunal therefore was not satisfied that the applicant had a well founded fear of persecution for any convention ground and affirmed the decision not to grant a protection visa.
The applicant sought a review of the Tribunal decision by means of an application filed in this Court under the provisions of s.39B of the Judiciary Act. The applicant has today, by leave, filed in Court a further amended application. The legal advisers for the respondent Minister did not object to leave being granted.
As well as seeking the appropriate constitutional writs, the amended application claims that the Tribunal fell into jurisdictional error in that:
The applicant made claims that she is not willing and not able to return to her home country due to the strong likelihood that she would suffer from persecution from the authorities. The activities she engaged herself in would put her in great danger were she to return to her home country at this period of time according to the political situation in the country at the moment.
The applicant addressed the Court in support of her application along those lines telling the Court that she did not understand why the Tribunal did not find her to be a credible witness when dealing with her involvement with Falun Gong.
I have read the outline of submissions prepared by counsel for the respondent, Ms Mason. These submissions were prepared prior to the respondent being aware that the applicant was seeking to file a further amended application. Nevertheless, the submissions are useful particularly as they refer to the question of whether or not there is any breach of s.424A of the Migration Act.
The submission points out that the applicant's application to the Refuge Review Tribunal lodged on 23rd February 2004 did not provide any substantive information but stated:
Please see my statement at DIMIA.
Quite clearly the applicant brought her protection visa application and the statements in support of it into consideration as part of her case for review by the Refuge Review Tribunal.
I am satisfied that there is no breach of s.424A as the Tribunal considered the inconsistencies between the protection visa application and the applicant's written claims to the Tribunal due to the fact that the applicant expressly advanced her protection visa application for the purpose of her application to the Tribunal, as counsel for the respondent points out.
Counsel for the respondent brings to my attention the decision of VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10] to [12] where Merkel J considered an almost identical situation where the applicant in that case had stated:
Please refer to my previous statement for further information.
I have also referred to a decision of my own in SZFHP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FMCA 1637 at [27] to [33], which is submitted as an analogous decision citing, and bound by, VUAV (supra).
The applicant's submissions and her amended application seek a merits review. It is well established that the Court does not have jurisdiction to conduct a further merits review of an applicant's case. It is the Tribunal that has the power to make findings of fact and provided that there is evidence upon which to support those findings of fact to the extent that a finding of fact is possible from such evidence, then there can be no jurisdictional error.
In this case I am satisfied that the Tribunal's findings are grounded in fact. The Tribunal's decision is based largely on the credibility of the applicant's evidence. The Tribunal points out at page 82 that it is not just one or two individual points, but the cumulative affect of the evidence that leads the Tribunal to be satisfied that the applicant's case is not a credible one. Credibility is very much a finding of fact.
I am mindful of the fact that the applicant is not legally represented. She herself told the Court that she was not a lawyer and she did not have any grounding in Australian law. Unfortunately, most applicants for review of decisions of the Refuge Review Tribunal are not legally represented.
I am mindful of the fact that when an applicant is not legally represented the Court should conduct its own independent examination of the Tribunal decision to satisfy itself that there is no jurisdictional error that it appears that the applicant may have been unable to identify. I cannot find such an error and it appears to me that there is not any jurisdictional error.
As there is no jurisdictional error, the decision that is under review, or that was under review by the Tribunal, is a privative clause decision for the purpose of s.474 of the Migration Act. It can only be set aside where there has been a failure to discharge imperative duties or a failure to observe inviolable limitations or restraints - see Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. Counsel for the respondent has specifically drawn my attention to the decision of Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76].
I am satisfied there is no jurisdictional error. I am satisfied that the decision is a privative clause decision as defined by s.474 of the Migration Act and therefore enjoys the protection of s.474 of that Act. It must follow that, unfortunately for the applicant, the application must be dismissed. I propose to dismiss the application.
It is, of course, a misfortune and a disadvantage to a party to appear before a Court of law without legal representation. It is particularly so in an area like Immigration law which is a difficult area of law. Unfortunately, most applicants for review of decisions of the Refuge Review Tribunal are not legally represented. It is unfortunate, but it is a fact.
The applicant in this case has been unsuccessful in her claim, although she maintains that her evidence to the Tribunal was based on her own experience. Where a party is unsuccessful before the Court it is the usual practice, although not an inevitable consequence, that the successful party will ask for, and obtain, an order for costs in their favour.
There is no reason that I can see why I should depart from that practice. The amount of $5000 which is sought is inclusive of counsel's fees and it appears to me to be appropriate. I propose to order that the applicant is to pay the first respondent's costs in the sum of $5,000.00.
There are two formal orders that I will make. I note that when these proceedings were commenced, they were commenced only against the Minister, but in order to comply with SAAP v Minister for Immigration & Multicultural Affairs [2005] HCA 24 it is appropriate to grant leave to join the Refuge Review Tribunal as a party to the application and I note that the further amended application filed in Court by leave today, named the Tribunal as second respondent. At this stage of the proceedings, technically it requires leave for that to be done, and I grant that leave.
I note also that the respondent Minister has a slight change of title, fortunately a shortening of her title, so the Minister is now the Minister for Immigration and Multicultural Affairs. I note that the title of the first respondent has changed to Minister for Immigration and Multicultural Affairs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 April 2006
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