NBJF v Minister for Immigration
[2005] FMCA 1300
•6 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBJF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1300 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in PRC as a member of Falun Gong – failure to respond to invitation to provide information – decision of Tribunal to proceed with review decision without further notice to applicant. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424C ; 474 |
| Applicant: | NBJF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL &INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3339 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 September 2005 |
| Date of Last Submission: | 6 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Solicitors for the Respondent: | Mr J. Bird, Phillips Fox |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Application filed 7 October 2004 in this Court is dismissed.
That the Applicant pay the costs of the Respondent in an amount of $2000.00.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3339 OF 2004
| NBJF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICUTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Tianjin in the Peoples Republic of China (“the PRC”) on 4 July 1957.
The Applicant is a citizen of the PRC.
The Applicant claims that he legally departed from Pudong Airport on 14 January 2004.
The Applicant arrived in Australia on 15 January 2004.
On 23 January 2004, the Applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act1958 (Cth) (“the Act”).
The Applicant in this application claimed that if he returned to the PRC he feared being jailed by reason of being a Falun Gong practitioner.
On 26 March 2004, a delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 27 April 2004, the Applicant filed an application for review before the Tribunal. On 7 September 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 7 October 2004 the applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision. The grounds of this Application are as follows:
“1. I face a risk of being jailed if I return to my original country – P R China
2. I believe my fear is well-founded because I have been arrested by Chinese Government.
3. I was persecuted by Chinese Government because I belong to a particular social group – Falun Gong.”
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s claims
The Applicant’s claims before the Tribunal were in a statement, lodged in support of his application for a protection visa on 23 January 2004, and in a further statement filed in support of his application for review by the Tribunal on 27 April 2004. The claims are substantially the same.
The Applicant claims to be a Falun Gong practitioner since May 1996. He claimed that, since 1999, he suffered repeated arrests and home searches. He stated that he was forced to leave his home in June 2001 for 6 months. He stated he was doing Dafa work printing clarification materials. The Applicant claimed that, on 1 December 2002, he was arrested by the Tianjin police and was detained for 8 months. He claimed that he was maltreated, abused and tormented during his detention and took part in a hunger strike commencing on 28 April 2003. He stated he was released, on 20 May 2003, in a critical condition following his hunger strike. The Applicant claimed that a “powerful government officer” was bribed to issue him with a passport and to apply for a visitors visa to Australia on behalf of the Applicant. He claimed he would face a risk of being jailed if he were to return to the PRC.
The Tribunal proceeding
On 22 June 2004, the Tribunal wrote to the Applicant requesting that he provide additional information. The request was sent to the Applicant, at both his home address and mailing address, as identified on his application for review. The letter stated that the information was to be provided to the Tribunal by 20 July 2004. The letter provided the name of the person and contact details to assist the Applicant if he was having difficulty in providing the information. The letter also provided the contact details of the Translating and Interpreting Service. The letter concluded by notifying the Applicant that if he did not provide the additional information by 20 July 2004, the Tribunal would make a decision on the review of his case without further notice.
Pursuant to s.424C of the Act, where an applicant is invited to provide additional information by a specified time in accordance with s.424 of the Act, and the time has passed for the provision of that information, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
The Tribunal, in this case, having regard to the time that had passed for the provision of material, the failure of the Applicant to respond to the Tribunal’s invitation and the failure of the Tribunal’s attempts to communicate with the Applicant, proceeded to exercise its discretion in accordance with s.424C and make its decision on the review. The Tribunal’s decision was handed down on 7 September 2004.
Although the letter sent to the Applicant at his home address was received by the Tribunal on 23 July 2004 marked “Return to Sender”, the Applicant does not claim before this Court that he did not receive a copy of the letter. Indeed, as noted above, the letter was also sent to the Applicant at his mailing address.
In the circumstances, I am satisfied that the Tribunal was entitled to exercise its discretion pursuant to s.424C of the Act to proceed to make a decision on the review and did so appropriately.
The Tribunal was satisfied that the Applicant is a citizen of the PRC. However, it otherwise stated that it had “little more than a vague and incomplete account contained in the Applicant’s protection visa application and his brief written statement to the Tribunal.” The Tribunal noted that it was left with insufficient information, in the absence of any response to its s.424 invitation dated 22 June 2004, for it to determine the veracity of the Applicant’s claims and whether the claims met the criteria for the grant of a protection visa. The Tribunal went on to specify the matters relevant to it being satisfied and, in respect of which, it had no further information.
The Tribunal concluded, on the material before it, that it could not be satisfied that the Applicant is a Falun Gong practitioner, or that he has been persecuted in the PRC in the past for that, or any other reason. The Tribunal also concluded that it was not satisfied that there were any other past or current circumstances giving rise to a well founded fear by the Applicant of persecution within the meaning of the Convention in the reasonably foreseeable future were he to return to the PRC.
Accordingly, the Tribunal concluded that it was not satisfied that the Applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The proceeding before this Court
The Applicant appeared unrepresented before this Court although with the assistance of an interpreter.
The Applicant was invited to make submissions in support of his Application filed 7 October 2004, following an explanation to him of the limited role of this Court in conducting judicial review of the decision of the Tribunal.
Whilst the Applicant did not seek an adjournment, he stated that he had misunderstood the importance of responding to the letter of 22 June 2004 and that he was still waiting for such material and evidence to arrive from his family in the PRC. I observed to the Applicant that there had been plenty of time for him to have obtained material, that he had given no response to the Tribunal’s letter of 22 June 2004, including seeking further time for the provision of information, that there was no evidence before this Court of the nature of any document sought by him to be provided, nor any attempt by him to obtain such document. I also pointed out to the Applicant that he had not sought to file an Amended Application in this Court or any written submissions in support of his Application, despite directions made by this Court on 20 October 2004 at which he was present and to which he agreed.
The Applicant’s grounds contained in his Application are not particularised and disclose no reviewable error. The grounds appear to reflect the Applicant’s disagreement with the Tribunal’s conclusion in its decision. It was explained to the Applicant that disagreement with findings of fact, open to the Tribunal on the material before it, does not necessarily amount to jurisdictional error.
The findings made by the Tribunal, upon which it based its conclusion, were open to it on the material before it. The findings are findings of fact and, accordingly, this Court has no jurisdiction to interfere.
The Tribunal’s decision is a privative clause decision, and pursuant to s.474 of the Act, is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court.
Accordingly, the Applicant’s Application filed 7 October 2004 is dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 6 September 2005
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