NBKP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1313

FEDERAL COURT OF AUSTRALIA

NBKP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1313

NBKP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 112 OF 2005

MADGWICK J
12 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 112 OF 2005

BETWEEN:

NBKP
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

12 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as second respondent.

2.The application be dismissed.

3.        The applicant pay the costs of the respondent, assessed in the sum of $3,000.

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 112 OF 2005

BETWEEN:

NBKP
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	12 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application said to be made under s 39B of the Judiciary Act 1903 (Cth) which asks that the Court set aside an adverse decision of the Refugee Review Tribunal (‘the Tribunal’). The applicant appears unrepresented. He is a citizen of the People’s Republic of China who arrived in Australia on 20 May 2004. On 18 June 2004 he lodged an application for a protection (class XA) visa. A delegate of the first respondent refused to grant a visa and on 20 July 2004 the applicant sought a review of that decision by the Tribunal.

2. The applicant claims to fear persecution, should he be returned to China, for reasons of political opinion.  He says that he is a supporter of a proposed resolution by Taiwan’s President for a referendum on the question of whether Taiwan should declare itself independent from the People’s Republic of China.  He says that he had involvement with a group of like-minded people, including Taiwanese businessmen.

3. The applicant had given a statement to the Department which was considered by the delegate and he furnished a further statement to the Tribunal with his application for review.  The Tribunal wrote to the applicant on 27 October 2004 and also to his then adviser.  The letter indicated that:

   ‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.’

4. The letter proceeded to invite the applicant to attend a hearing at the Tribunal to give oral evidence and present arguments and informed him that he could ask the Tribunal to obtain oral evidence from other people.  The hearing date appointed was for 9.00 am on Monday, 29 November 2004. On 22 November 2004 a clerk of the Tribunal attempted to contact the applicant by telephone and did contact his then adviser by telephone.  The adviser indicated that he would send a reply to the letter conveying the invitation to attend the hearing ‘this week’.

5. No such reply was ever received and the Tribunal proceeded to give a decision on 2 December 2004.  The reason why the applicant did not succeed before the Tribunal was that the Tribunal took the view that it was not satisfied that the applicant had a well-founded fear of persecution should he return to China.  The Tribunal said:

   ‘This is because the Tribunal finds the Applicant [sic] claims very general and lacking in useful detail.  For example, there is very little useful detail about the group, or about the group’s activities or the Applicant’s activities in actually supporting the referendum or democracy more generally, or about his claimed future intentions.’

6. In addition, the Tribunal referred to the fact that it had not had the opportunity to test the applicant’s claims with him because he had failed to attend the hearing. 

7. The amended application gives, in substance, three grounds for legal criticism of the Tribunal.  The first is that the Tribunal ‘failed to obtain current country information in relation to a matter on which it based its decision’.  The second is that the Tribunal ‘did not provide enough time to allow the applicant to submit ... further evidence’.  The third is that the Tribunal had based its decision without ‘took proper investigate’ (sic).

8. It is a notorious fact in our part of the world that the Chinese Government is extremely sensitive to the question of possible Taiwanese moves to assert independence, in an international law sense, from China.  The Tribunal was entitled to act on that general understanding, at least for the preliminary purpose of assessing the credibility of the applicant’s claims.  It would also have been entitled to infer from that well-known fact that a Chinese citizen who aided and abetted, or promoted any step that might lead to declaration of independence on behalf of the people of Taiwan, would be likely to run into serious trouble from the Chinese authorities.  In the circumstances of non-acceptance of the applicant’s claims there was no obligation on the Tribunal to go further.  The first ground of attack fails.

9. As to the second criticism, the applicant complained in oral submissions that it was difficult to get documentary material from China to support his case, and that he had not had enough time to do so.  However, he does not suggest that he or anybody on his behalf asked the Tribunal for more time for him to collect further evidence.  In these circumstances it seems to me there was no denial of procedural fairness. 

10. The third matter of complaint seems to me to be, in substance, simply a restatement of the first and, for the reasons I have given, it does not sound in jurisdictional error on the part of the Tribunal. 

11. Accordingly, the application will be dismissed.  I will join the Refugee Review Tribunal as second respondent.  The applicant is to pay the respondent’s costs, assessed in the sum of $3,000.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             21 September 2005

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	12 September 2005
Date of Judgment:	12 September 2005