NBJF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 952

FEDERAL COURT OF AUSTRALIA

NBJF v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 952

NBJF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1814 of 2005

WILCOX J
9 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1814 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBJF
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

9 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal 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	NSD 1814 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBJF
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	9 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Emmett FM delivered on 6 September 2005. As Acting Chief Justice I gave a direction, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard and determined by a single judge.

2. The magistrate dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, to refuse to grant a protection visa to the appellant. 

3. The appellant is a citizen of the People's Republic of China.  He arrived in Australia on 15 January 2004.  On 23 January 2004, he applied for a protection (class XA) visa.  This was refused and, on 27 April 2004, the appellant applied to the Tribunal for review of that decision. 

4. The Tribunal member apparently looked at the papers and formed the view that further information was necessary.  On 22 June 2004, the District Registrar of the Tribunal wrote to the appellant seeking certain further information.  The information was to be provided by 20 July 2004.  The letter stated that, if the appellant had difficulty providing the information, he should telephone a particular person in the Tribunal office, as soon as possible and before 20 July 2004.  The letter advised the appellant that, if he did not speak English, he should contact the Translating and Interpreting Service on a particular telephone number.

5. In capital letters at the end of the letter, the District Registrar said this:

   ‘If you do not provide the additional information by 20 July 2004 the Tribunal will cancel the hearing if one has been scheduled and will make a decision on the review of your case without further notice.’

6. The appellant did not provide the required information.  Nor did he contact the person identified in the District Registrar's letter.  He told me today that he received the letter but did not understand what to do about it.  However, it seems to me the letter was very clear as to the course the appellant should take if he had any problem obtaining the required information by the required date. 

7. Having regard to the failure of the appellant to provide the information, the Tribunal member decided to make a decision without further delay.  A decision was made on 17 August 2004 and handed down on 7 September 2004.  The Tribunal’s decision went against the appellant, basically because of the insufficiency of the information that he had been supplied.  This insufficiency made it impossible for the member to determine the veracity of the appellant’s claims. 

8. The appellant sought judicial review of this decision.  However, his application for judicial review did not identify any jurisdictional error.  The grounds set out in the application were as follows:

   ‘1.I face a risk of being jailed [sic] 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 prosecuted by Chinese Government because I belonged to a particular social group - Falun Gong.’

9. At the hearing before the magistrate, the appellant was assisted by an interpreter.  He did not advance any argument of jurisdictional error, but merely claimed he had been delayed in obtaining the material necessary to enable him to respond to the Tribunal's letter of 22 June 2004.  The magistrate observed there was no evidence before her of the nature of any document that had been sought by the appellant, nor of any attempt by him to obtain such document.  The magistrate said:

   ‘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.’

10. I entirely agree with the learned magistrate.  Nothing has been advanced to me today to support the possibility of jurisdictional error.  I have myself considered the Tribunal's reasons for decision and can discern no arguable jurisdictional error.  The appeal will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             19 December 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Ms S A Mason of Phillips Fox
Date of Hearing:	9 December 2005
Date of Judgment:	9 December 2005