NBIT v Minister for Immigration and Multicultural Affairs

[2006] FCA 621

FEDERAL COURT OF AUSTRALIA

NBIT v Minister for Immigration and Multicultural Affairs [2006] FCA 621

NBIT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 230 of 2006

MADGWICK J
12 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 230 OF 2006

BETWEEN:

NBIT
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

12 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs assessed in the sum of $2500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 230 OF 2006

BETWEEN:

NBIT
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

12 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a judgment of the Federal Magistrates Court given by Lloyd‑Jones FM on 25 January 2006.  His Honour dismissed the appellant’s application to that Court seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 14 July 2004 which was adverse to the appellant.

2. The matters agitated before the learned Federal Magistrate were a claim that the respondents (I interpolate that the plural is significant) 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’, a claim that the respondents (again the plural) have not considered the evidence which is in favour of the applicant because ‘[t]hey have only considered the evidence which is not in favour of applicant’, and a claim that the Tribunal failed to take into account ‘any independent country information as to the treatment of Christians in China’. 

3. His Honour dealt with these questions in a way which on its face does not bespeak error.  In the notice of appeal to this Court the applicant asserted as his two grounds for appeal:

   ‘2.RRT did not comply with s 424 and 441A of the Migration Act 1958.

   3.RRT failed to take into account relevant considerations in reaching its decision in my case.’

4. The appellant appeared unrepresented. He asked that the Court ‘review’ his whole case. He claimed that s 441A of the Migration Act 1958 (Cth) had not been complied with. When asked to say how this was so, he indicated that he would need to make a telephone call to the friend who had helped him prepare his submissions. He said the friend was in China and he sought an adjournment for that purpose which I refused.

5. Section 441A is a machinery provision which deals with the methods by which the Tribunal is to give documents to persons other than the Secretary to the Minister’s Department. As far as I can see it has got nothing whatsoever to do with the case, it was not raised below and there is no reason why leave should be given to raise it now.

6. It was next said that the Tribunal did not consider relevant information and that the Tribunal’s reasons were insufficient in that the Tribunal did not list details of the independent country information that it had referred to in relation to the persecution of Christians in China, and that the Tribunal did not sufficiently understand the nature and extent of persecution in China of Christians. 

7. Further, the appellant submitted that the evidence used by the Tribunal was insufficient and wrong.  Also, it had been impossible for the appellant to gather all the documents that he wished to.  He concluded with the peroration that the Tribunal had been unfair in causing the Australian Government to deny him a protection visa. 

8. The appellant failed to appear upon invitation to the Tribunal.  The Tribunal decided the matter simply on the inadequacy of the material which the appellant had furnished to persuade it that he was, as he claimed, a persecuted Christian.

9. There was no suggestion by the Tribunal that it doubted that some Christians might be persecuted in China.  There is no indication that the Tribunal looked at any further material than that which was referred to by the delegate of the Minister.  The delegate likewise referred only the departmental file and proceeded on the unspoken assumption that it is possible that some Christians in China might be persecuted.

10. In these circumstances it is not clear that the Tribunal Member looked to any ‘independent country’ information nor was it necessary that it should do so.  It was not made clear how a general and detailed understanding of the persecution of Christians in China, which notoriously does occur, might have made up for the deficiencies in the applicant’s material that the Tribunal identified.

11. The significance for judicial review proceedings of any alleged difficulty of obtaining documents, as to which there is no evidence, eludes me.  Section 424 appears to have nothing to do with the case.  The Tribunal is under no duty to seek additional information, and there is no evidentiary suggestion that the Tribunal did so but failed to provide it to the appellant.  Likewise there is no substance in the ultimate claim that the Tribunal was unfair to the appellant.

12. As far as I can see he had a fair hearing and a fair opportunity to put his case.  He failed for want of use of the opportunity to explain his situation and to give the Tribunal the capacity to test with him some issues that it identified and which, with respect, obviously arose about his story.  There is no error in the learned Federal Magistrate’s judgment that I discern, nor is there any other basis as far as I can see for impugning the Tribunal’s decision. 

13. The appeal must be dismissed, with costs assessed in the sum of $2500.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             24 May 2006

Solicitor for the Appellant:	The Appellant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 May 2006
Date of Judgment:	12 May 2006