NBIT v Minister for Immigration - [2006] FMCA 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBIT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 19

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 422B, 474
Judiciary Act 1903 (Cth), s.39B

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 222 (affirmed by appeal SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1160)
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant:

NBIT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2924 of 2004

Delivered on:

25 January 2006

Delivered at:

Sydney

Hearing date:

24 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of a Mandarin interpreter.

Advocate for the Respondent:

Ms K Crawley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2924 of 2004

NBIT

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Federal Court of Australia on 30 August 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The matter was listed for first directions in the Federal Court on

24 September 2004. The applicant appeared in person and was assisted by a Mandarin interpreter. Relevantly, his Honour Whitlam J transferred the matter to the Federal Magistrates Court of Australia and his Honour made further orders that the applicant file and serve an amended application giving full particulars of each ground of review to be relied upon by 19 November 2004 and after the date specified for the filing of the amended application, the first respondent may file an application for summary dismissal which would be given a return date by the Registry upon filing.
On 18 November 2004 the matter was listed for directions in the Federal Magistrates Court to set the matter down for hearing. The applicant appeared in person with the assistance of a Mandarin interpreter. On 7 February 2005 the first respondent wrote to the applicant in relation to the applicant’s failure to file an amended application. On 22 March 2005 the first respondent wrote to the applicant advising that the matter had been set down for hearing before Lloyd-Jones FM in a non-compliance list on 3 May 2005.
On 3 May 2005 the matter was listed for hearing before Lloyd-Jones FM in the non-compliance list. No appearance was made by the applicant and his application was subsequently dismissed under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth). On

10 June 2005 the applicant filed a Notice of Motion and supporting affidavit seeking to have the application re-instated and the orders of Lloyd-Jones FM set aside. On 12 July 2005 the re-instatement motion was heard and the matter was adjourned to 9 August 2005 to allow the applicant further time to file an amended application. On 9 August 2005 the orders of 3 May 2005 were set aside and the matter was set down for final hearing.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NBIT”.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Background

The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 10 January 2004. On 11 February 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-36) (“CB”). On

27 February 2004 the delegate refused to grant a protection visa (CB pp.37-48) and on 25 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.51-54).
In his original visa application, the applicant stated he was born in August 1961 and is a married man from Changle city in Fujian province. He stated that he speaks, reads and writes Mandarin and that his ethnic group is Han and his religion Christianity. The applicant did not provide any information regarding his prior occupation or profession. He had 14 years of education and claimed he had a Diploma by correspondence issued in 1984. The applicant claimed he was a purchaser from 1981 until 1997 and from 1997 until 2003 he was a vice manager. In January 2003 the applicant stated he was unemployed and in March 2003 he was in prison. The applicant stated that he came to Australia on a temporary business visa and his passport was issued in May 2002 and he visited Malaysia, Thailand and Bangladesh in May and June 2003. The applicant stated that he was involved in illegal, underground Christianity activities in January 2003 (CB p.84).

Applicant’s claims

The applicant’s claims were set out in a statement attached to his protection visa application (CB pp.26-27). Relevantly, the applicant claims:
a)he is a Christian who has been persecuted by the Chinese government for his religious beliefs;
b)in January 2003 he and other Christians were at a private prayer and worship meeting in the home of Wang Qianggang when he was arrested;
c)his family was unable to pay a bribe of RMB 10,000 to secure his release and he was sentenced to a re-education camp for two months;
d)on the first day at the camp, he was, at the instigation of prison guards, beaten by fellow inmates. He was later beaten on many other occasions because of his insistence on promoting Christianity;
e)he was dismissed from his job after he was arrested and, after his release, he was not able to find other employment; and
f)he obtained a passport and travelled to various countries before travelling to Australia to obtain protection.
In the applicant’s application for review filed with the Tribunal (CB p.53), the applicant reiterates his claim that he is a Christian who was arrested and sentenced to a re-education camp. The applicant also supplied to the Tribunal a document purportedly issued by the “Changle City Christianity Association” certifying that the applicant had to go into exile and a membership card also purportedly issue by the Changle City Christianity Association (CB pp.57-68).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons were contained in the first respondent’s written submissions prepared by Ms Markovic and

I adopt paragraph 4 of those submissions for the purpose of this judgment:
[4.1]The RRT’s decision commenced with an overview of the applicant’s circumstances and then reviewed the law applicable to determining whether the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (CB pp.81-84). Relevantly, the RRT set out extracts from the statement attached to the applicant’s protection visa application. The RRT also noted the claims set out in the application for review to the RRT and documents from the Changle City Christianity Association the applicant had submitted (CB p.85).
[4.2]The RRT noted that the applicant had been advised that it was not able to make a decision based on the information provided in his protection visa application and in his application for review to the RRT (CB p.85). The RRT noted that the applicant declined to appear.
[4.3]The RRT was unable to be satisfied of the applicant’s claim to fear persecution on the “general and unreliable” evidence available to it. The RRT noted that it had a number of issues which it required further detailed evidence. In particular, the RRT noted that (CB p.86):
(a)the applicant claimed to be a Christian but provided “very little specific details” about his religious beliefs. The RRT was unable to be satisfied as to the “authenticity” of this claim;
(b)the applicant claimed he was detained and that after he was released he travelled overseas. The RRT noted that a copy of his passport indicated that the applicant travelled to Malaysia, Thailand, Bangladesh and Hong Kong before returning to China and departing for Australia. The RRT observed that “in light of this apparent freedom of movement subsequent to his claimed detention, the Tribunal would have wished to explore with the applicant his claimed fear of ongoing persecution in China”.

Application for review of the Tribunal’s decision

On 30 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The respondents denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm for being a Christian in China.
2.The respondents have not considered the evidence which is in favour of the applicant. They have only considered the evidence which is not in favour of the applicant.
On 2 August 2005 the applicant filed an amended application which contained the following grounds:
2.The respondents denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm for being a Christian member in China.
3.The respondents have not considered the evidence which is in favour of the applicant. They have only considered the evidence which is not in favour of applicant.
4.The Refugee Review Tribunal’s decision was attended by jurisdictional error in that the Tribunal erred in concluding that it could be satisfied that:
a.the applicant had been persecuted because of his Christian religious beliefs;
b.the applicant would be persecuted because of his Christian religious beliefs on any return to China.
c.Grounds: The Tribunal failed to take into account relevant consideration in that the Tribunal failed to take into account any independent country information as to the treatment of Christians in China.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

Both parties filed written submissions in accordance with previous orders of this Court. The applicant’s submissions consisted of a brief history of the matter and the previous grounds contained in the amended application. No new material or any expansion of the material was contained in the submissions.

Reasons

The applicant appeared as a self represented litigant with the aid of a Mandarin interpreter. When invited to address the Court in support of his application, the applicant declined and indicated he would rely upon his amended application and his written submissions.
On 2 August 2005 the applicant filed an amended application which contained a number of claims and identified the following grounds as the basis for relief sought in his application. No particulars were provided.
The Tribunal failed to take into account relevant consideration in that the Tribunal failed to take into account any independent country information as to the treatment of Christians in China.
I will return to the issues which were contained in the claims and could be considered as grounds for judicial review and noting that the pleadings were prepared by a self represented litigant who has been faced with the task of preparing pleadings in a foreign language and in a legal system with which he is not familiar.
The first respondent submitted that the single issue identified as the ground for review is misconceived and without basis. Taking into account a particular consideration or failing to take into account a particular consideration, cannot constitute jurisdictional error unless the consideration is one, which, on the proper construction of the Act or the Migration Regulations 1994 (Cth) is relatively, “made compulsorily relevant” or is prohibited: Minister for Aboriginal Affairs v Peko Wallsend per Mason J at [40], Paul v Minister for Immigration & Multicultural Affairs at [78]-[79]. The applicant has not identified the relevant material the Tribunal took into account or the relevant material which the Tribunal ignored and none is apparent on the face of the decision.
The first respondent noted that the applicant filed the document titled “Affidavit (Amended Application)” on 19 November 2004. The following grounds were set out in that document as the basis for relief sought in the applicant’s application.
a)The Tribunal rejected the applicant’s claim because the Tribunal:
i)found he did not submit enough evidence;
ii)had an “insufficient understanding of the persecution of Christianity in China”; and
iii)“denied my involvement in Christian activities” because of his inability to submit supporting documents.
b)The applicant was deprived of the opportunity to explain his “hard situation and impossibility” of obtaining such documents and evidence. He alleged that he telephoned the Tribunal and informed it that it was impossible for him to obtain documents; and
c)Denial of natural justice.
The Tribunal rejected the applicant’s application because it found the applicant’s evidence to be “general and unreliable” (CB p.86) and not because of his failure to submit supporting documents. The Tribunal was not satisfied, on available evidence, that the applicant had been or would face persecution because of his religious beliefs. The applicant was on notice that the Tribunal could not make a favourable decision on the material alone and was invited to a hearing. The applicant accepted and then declined the Tribunal’s hearing invitation. In the circumstances, there is no error in the Tribunal’s approach: see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs and SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs (affirmed by appeal SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1160), Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003.
Moreover, even if the Court were to accept that the applicant did not orally inform the Tribunal that he could not obtain evidence, it would not have been only the deficiency in evidence which affected his case. The applicant might have remedied the deficiency by attending the hearing and giving evidence on his own behalf but he chose not to.
As I have indicated above, the applicant has listed a number of issues under his claim which appear, in effect, to be grounds of judicial review and I will treat them as such as previously indicated because of the self represented litigant’s difficulty with the system and language of this Court. The applicant claimed that he was denied natural justice because presumably the delegate and the Tribunal did not consider the context in which the application could face persecution and serious harm from being a member of the Christian church in China.
The natural justice hearing rule is now contained in the statutory framework within the Act under Division 4 Part 7 and specified by s.422B. The materials supplied in the Court Book would indicate that the Tribunal has complied with Division 4 of the Act although the applicant did not fully avail himself of those provisions. He declined to appear before the Tribunal when he was provided with an opportunity to put forward both oral and written submissions in respect of his Christian beliefs and, if necessary, to bring any other witnesses to support his argument. This ground is unparticularised and not supported by any submissions to identify what provisions of the Act the applicant claimed the Tribunal failed to observe. In the absence of that material, this ground cannot be sustained.
The next ground that the applicant raised is that the Tribunal and presumably the delegate failed to consider evidence which was in the applicant’s favour, but instead considered evidence that was contrary or unfavourable to the applicant’s position. Again this ground is unparticularised and no subsequent submissions, oral or written, were made to support this allegation. On a fair reading of the materials supplied in the Court Book together with the Tribunal decision it is not apparent what evidence the Tribunal allegedly ignored that was favourable to the applicant and would have changed the outcome of the decision. Allegations that the Tribunal had “insufficient understanding” of the persecution of Christians in China amount to no more that a complaint about the Tribunal’s factual conclusion and its adverse finding. This is an attempt to engage this Court in an impermissible merits review. In the circumstances, this ground cannot be sustained.
The third of the grounds is an allegation that the Tribunal erred in its conclusion that the applicant would not be persecuted because of his religious Christian beliefs on his return to China. On the face of the Tribunal’s decision, the Tribunal has set out all the material available to it to assess the applicant’s claims and has come to the conclusion that it is not satisfied that on the evidence before it the applicant has a well founded fear of persecution within the meaning of the Convention. The Tribunal comes to this conclusion on the basis that the Tribunal is not required to accept the claim of fear of persecution in the absence of all of the statutory elements being made out to that effect.

The Tribunal comes to that conclusion because the applicant declined to appear before the Tribunal to elaborate upon his claims. The Tribunal was not satisfied that it had sufficient detail as to the operation of the underground and illegal Christian church in China and the applicant’s participation in that activity. Nor was the Tribunal satisfied that if the applicant was involved in the illegal activities of that church and was a person known to be involved in that illegal activity by the Chinese government, that the applicant could travel with such ease to a number of overseas countries and return to China without intervention by the authorities. In the absence of any evidence or submissions that provide greater detail in respect of the applicant’s circumstances in respect of these issues, it is not possible to identify where the Tribunal has made an error of the type that could be considered a jurisdictional error.

Conclusion

The grounds in the application are general and without particularisation. I have not been able to satisfy myself that I am able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 January 2006