NBIS v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1603

FEDERAL COURT OF AUSTRALIA

NBIS v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1603

NBIS AND NBIU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1266 OF 2004

MADGWICK J
25 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1266 OF 2004

BETWEEN:

NBIS
FIRST APPLICANT

NBIU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

25 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with 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	N 1266 OF 2004

BETWEEN:

NBIS
FIRST APPLICANT

NBIU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MADGWICK J
DATE:	25 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is a tragic case.  The first applicant is a 76 year-old man and the second applicant is his 49 year-old daughter.  It is convenient simply to speak of the first applicant’s case and to call him the applicant.  The applicant is a national of the Peoples Republic of China.  He was unfortunate enough as a young man either consciously to choose, or to be caught up on, the wrong side of history in China.  For real or presumed political sympathies antipathetic to the authoritarian Communist rulers of China, he spent 37 years, that is rather more than half of his adult life, in gaol and had to endure his children being discriminated against on account of his supposed political crimes.

2. The stress of his life apparently cost him the company of his wife, who managed to travel to the United States, it seems with his blessing.  Apparently, members of the family were not able to join her.  In Australia, the applicant has a son old enough to have a 21 year-old grandson.  He wishes to spend his declining years here with his family.  His son is apparently modestly employed in a chicken and meat processing establishment.  It is evident that, despite the applicant being an educated man, such legal assistance as the Government’s very generous pilot scheme has been able to afford him has, not surprisingly, left him unable fully to grasp the difficulties of Australian law which confront him.

3. Those difficulties include that it is settled law in Australia, indeed in English speaking countries generally, that the concept of a well-founded fear of persecution looks to a well-founded fear of actual future persecution.  That is to say, that it must appear to a decision-maker considering the claim for refugee status that there is a real and substantial basis for fear of future harm serious enough to amount to persecution.  The Refugee Review Tribunal (‘the Tribunal’) member accepted entirely the applicant’s account of his tragic personal and familial past but, in reliance on various materials, including materials referred to by the Minister’s delegate when notifying the delegate’s adverse decision to the applicant, was not satisfied that in all the circumstances there was any real chance of future harm amounting to persecution to the applicant.

4. Despite the great sufferings inflicted on the applicant in the past, his own account was that for about nine years before he came to Australia he had substantially lived unmolested and was allowed to leave the country on a passport which he was able to obtain.  The passport was in his own name.  It is not possible to say that there was no material to support the Tribunal member’s decision, nor is it possible to say that there was so little of it as necessarily to indicate a misconception by the Tribunal of its task in coming to the conclusion that it did. 

5. Indeed, the likelihood is that the Tribunal member concerned considered the applicant’s case with a rather more than the legally necessary open mind and is likely to have been ready to find in his favour if there was a basis for so doing.  The Tribunal member said:

   ‘Although the Tribunal has no power to make any determination based on humanitarian grounds, these matters being purely within the discretion of the Minister, the Tribunal is of the view that there are compelling reasons for the applicants’ cases to be considered on compassionate grounds.’

6. In these circumstances, the applicant’s application to the Court must fail.   There is no jurisdictional error demonstrated on the part of the Tribunal. 

7. I would, however, like to join with the Tribunal member in respectfully expressing for the Minister’s benefit the observation that there are indeed compelling reasons for the applicants’ cases to be considered on humanitarian grounds.

8. The applicant is plainly a man of character and fortitude.  His experiences would have crushed a lesser man.  His grandson, who was permitted briefly to speak to the Court to assist his grandfather, impresses as a decent and intelligent young man. 

9. This case is a long way from the stream of dishonest manipulators of the system who so frequently fall to be dealt with in Sydney.  I may add that I speak as someone for whom events befalling people close to me have made me acutely aware of the extent to which people who are unmeritoriously manipulating the system in practice disadvantage people, including Australians, who are not.  Even so, I cannot believe that there are many Australians who would want to see this man sent back to China.

10. The application will be dismissed.

11. The fact that the applicant has no money is not a reason not to make an order for costs.  In my opinion, however, it would be a very proper exercise of ministerial discretion not to seek to enforce that order at all in this case, and I recommend that that be done.

12. I would finally add that the applicant and his family, judging by the application to the Court, appear to have fallen into the hands of what counsel for the Minister aptly described as the “grey industry” of under-the-counter migration advisers. It would be greatly in the applicant’s interests to have nothing further to do with those people and to make his way very promptly to an able and experienced lawyer dealing with migration cases who could assist the applicant to put together what would appear to be a very powerful case for the Minister’s consideration under s 417 of the Migration Act 1958 (Cth); that is, to make a decision in the public interest more favourable than that which the Tribunal made.

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

Associate:

Dated:               December 2004

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	25 November 2004
Date of Judgment:	25 November 2004