NBLV v Minister for Immigration and Citizenship

[2007] FCA 785

FEDERAL COURT OF AUSTRALIA

NBLV v Minister for Immigration & Citizenship [2007] FCA 785

NBLV, NBLW AND NBLX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 274 OF 2007

MADGWICK J
14 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 274 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBLV
First Appellant

NBLW
Second Appellant

NBLX
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	14 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first appellant pay the first respondent’s costs of the appeal fixed at $3500.

3.The name of the first respondent be amended to the Minister for Immigration and Citizenship.

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 274 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NBLV
First Appellant

NBLW
Second Appellant

NBLX
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	14 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an appeal from a decision of the Federal Magistrates Court, given by Emmett FM, which dismissed an application for judicial review of a decision adverse to the appellants given by the Refugee Review Tribunal (“the Tribunal”). 

2. The first appellant (“the appellant”) is a national of the People’s Republic of China.  He has been in Australia for nearly eleven years.  For the first seven of these he apparently had some sort of business visa and, a carpenter by background in China, he had established a business here of manufacturing fitted wardrobes.  Apparently the appellant’s most recent business visa expired in about 2003. 

3. It was accepted that his brother was arrested for Falun Gong activity in December 2002 and incarcerated, apparently, in a “reformatory” or in one or more “reformatories”.  The appellant says that he himself had commenced Falun Gong activities in Australia from about 2000 and he wrote to a number of international organisations drawing attention to his brother’s plight and that of other people in China in a similar position.  He also, in May 2003, published an article under his own name in a local Chinese language Falun Gong newsletter called “Truth”.  He was otherwise active here from February 2003 in support of Falun Gong activities and publicly critical of the stance of the Chinese government towards Falun Gong adherents.  His case was founded on a claim that he was a Falun Gong practitioner who, like his brother, and given the brother’s circumstances, was likely to be imprisoned on his return to China. 

4. The Tribunal member did not accept that, apart from the publication of the article and the letter-writing to international organisations, the appellant’s other public activities since February 2003 were part of any commitment to Falun Gong, and was not satisfied that they were for any purpose other than strengthening his claim to be a refugee. In accordance with s 91R(3) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal therefore disregarded such conduct for the purpose of determining whether the appellant had any well-founded fear of persecution. The Tribunal thought that the appellant’s knowledge of Falun Gong had been “acquired through study rather than practice” and, for reasons given, did not accept his genuineness. The Tribunal considered also a claim that despite, as the Tribunal found, a lack of genuine Falun Gong belief, the appellant might be imputed as having Falun Gong sympathies by the Chinese authorities. However, the Tribunal considered that this was unlikely and so, in the view of the Tribunal, he had no well-founded fear of persecution should he be returned to China.

5. The appellant complained to the Federal Magistrate of a denial of natural justice for failure fully to consider the evidence, failure to comply with s 424A of the Act and a failure by the interpreter properly to translate certain independent country information. Her Honour rejected all of those complaints.

6. In this Court, the notice of appeal in substance complained of the illogicality of the Tribunal’s decision and of its failure to be satisfied that the appellant’s activity did not fall within s 91R(3). As to this, any illogicality on the part of the Tribunal is not of the extreme kind that would betoken a jurisdictional error; otherwise, that complaint is about the merits of the decision.

7. The complaint about s 424A appears to be misplaced. The Tribunal seems only to have referred to general country information which would fall within the class of information of which, by reason of s 424A(3), particulars do not need to be given by the Tribunal to an applicant.

8. Finally, the appellant complained that the Tribunal had failed to exercise its powers under s 424 to obtain information in order to investigate whether there was material to corroborate the appellant’s claims, the Tribunal having made the point that the appellant himself had not produced such material.  This case does not fall within the rare class of cases where failure by the Tribunal to obtain further information might possibly amount to jurisdictional error. 

9. The learned Federal Magistrate’s reasons appear not to exhibit manifest or any other incorrectness that I can see, and the appellant did not address himself much to those reasons.

10. There is, I regret to say, no substance in the appeal and it will be dismissed.  The appellant is to pay the first respondent’s costs, assessed in the sum of $3,500.

11. The appellant is, however, an intelligent, seemingly respectable person, as is his wife (the second appellant) who accompanied him here.  They have, apparently, worked hard and added to the sum of wealth in the Australian community.  They have here, for a considerable number of years, brought up their child (the third appellant), now a university student.  This may be a matter for the Minister to consider the exercise of his powers to make a decision in the public interest more favourable than that of the Tribunal.  No doubt the appellant will get

    some expert advice about whether representations to this effect might be made to the Minister. 

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:        30 May 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Verity McWilliam
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 May 2007
Date of Judgment:	14 May 2007