NBMM v Minister for Immigration

Case •

[2006] FMCA 1134

•

3 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBMM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1134

MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal affirming delegate’s decision not to grant protection visa – citizen of China claiming fear of persecution because of religion – merits review – no reviewable error – privative clause decision.

PRACTICE & PROCEDURE – Competency –application out of time – where Tribunal decision handed down on 16 June 2005 – application not filed at Federal Court until 17 November 2005 – application not competent.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 91R, 474, 477

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Applicant: NBMM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 40 of 2006
Delivered on: 3 August 2006
Delivered at: Sydney
Hearing date: 3 August 2006
Date of last submission: 3 August 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Kennett
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The title on the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is not competent.

  3. The Application is dismissed.

  4. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 40 of 2006

NBMM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 27th May 2005. The Tribunal handed down its decision on 16th June 2005.

  2. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.

Background

  1. The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 18th September 2004. On 29th September he applied for a protection visa but that was refused on 16th February 2005. 

  2. The Applicant then applied to the Refugee Review Tribunal for a review of that decision. The Applicant lodged his application to the Tribunal on 10th March 2005. He did not provide any other documentation with that application.

  3. The Tribunal wrote to him on 19th April 2005 inviting him to attend a hearing which was to take place on 13th May at 2:00pm. The hearing, for some reason, did not go ahead on that date and a new date was set, being 2:30 pm on Friday 27th May. 

  4. The Applicant attended on the date of the hearing and gave oral evidence with the assistance of a Mandarin interpreter. He told the Tribunal that he asked his 14 year old nephew to help him prepare the application for a protection visa.

  5. He claims that he was born into a devout Christian family and he and other people organised a network to distribute bibles and other religious materials in the south of China. Two members of the network were arrested by the Public Security Bureau in February 2004.

  6. The PSB searched his home and found some religious material, although he had escaped. The PSB questioned members of his family. The Applicant went into hiding and in September 2004 obtained an Australia visa.  He said that he would be persecuted if he were to return to China. The Applicant was asked a number of questions about his religion by the Tribunal Member.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 62 through to 64 of the Court Book. The Tribunal accepted that the Applicant was a national of China but found that there were serious problems with the reliability of his evidence. In particular; the Tribunal said at pages 62 and 63 of the Court Book:

    I have concluded that the Applicant's claim that he is a Christian and that he was involved in the importation and distribution of religious materials is not credible.

  2. The Tribunal accepted that the Applicant's father was a Christian who had been arrested on a couple of occasions when the Applicant was a child. The Tribunal however, found the Applicant's evidence in relation to his own claim to be a Christian was totally unsatisfactory. The Tribunal set out reasons why the Tribunal had formed this negative view of the Applicant's evidence in this regard. The Tribunal said at page 63 of the Court Book:

    The Applicant was unable to articulate anything about Christian principles or beliefs.  Indeed, he told me during the hearing that he was unable to distinguish between the principles of Christianity and those of Falun Gong.

  3. The Tribunal also noted that the Applicant had been in Australia for eight months of that time but had made no attempt to involve himself in any Christian activities since his arrival in Australia. The Tribunal also had difficulty with the Applicant's evidence that the PSB wanted to arrest him before he left China. The Tribunal noted that the Applicant was able to obtain a passport in his own name from the PSB and had no difficulty doing so.

  4. The Tribunal put this concern to the Applicant who said that the reason that the PSB had not arrested him before his departure from China was that the PSB were not as tough as they were before. The Tribunal did not consider this an adequate explanation. 

  5. The Tribunal went on to find that:

    Given the unsatisfactory nature of the Applicant's evidence, I do not accept that he is currently a Christian or that he has been a Christian in the past.  As I do not accept that the Applicant is a Christian, I do not accept that he was involved in distributing religious materials in China.

  6. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for reason of his religion and noted that he had not claimed to fear persecution for any other reason. The Tribunal also noted, at page 64 of the Court Book that no other reason to fear persecution was suggested on the evidence before the Tribunal.

  7. Therefore, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol.

  8. The Tribunal affirmed the decision not to grant a protection visa to the Applicant.

The Application for Judicial Review

  1. The Applicant has sought a review of this decision under s.39B of the Judiciary Act and he filed an application in the Federal Court on


    17th November 2005. The Federal Court transferred his application to the Federal Magistrates Court on 4th January 2006. The Applicant has not filed any documents since his original application and he confirmed that to the Court. 

  2. In his application he seeks a writ of certiorari quashing the Tribunal's decision and a writ of mandamus compelling the Tribunal to re-hear and determine the matter according to law. He sets out in his application three grounds. First; he claims that the Tribunal did not follow the procedures set out in the relevant subdivision of the Migration Act 1958 when considering the grant of the visa under s.65(1) and s.36(2) when reviewing the application. He claims that this was a jurisdictional error.

  3. Secondly, the Applicant claims to fear persecution upon return to his home country and seeks protection in Australia. He claims that under sub-ss.(1) and (2) of s.91R of the Migration Act he satisfies the requirement for the grant of the relevant visa and the Tribunal failed to grant a protection visa to him.

  4. His third ground is that the facts and evidence provided to the Tribunal and originally to the Department, have established the genuineness of his asserted fear which is well-founded.  He claims that all the statutory elements have been made out and refers to the decision of Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596]. He claims to be stressed that while meeting the requirements of the grant of a visa the Tribunal has failed to grant the visa to him.

  5. The Applicant attended Court today and was not legally represented.  He has not filed any written outline of submissions and was unable to answer questions from the Court, explaining the basis for his first ground. When asked to tell the Court why he believed the Tribunal had made a mistake in refusing his claim, he replied:

    Don't have a clue.

  6. When asked to put to the Court what he considered to be relevant, he contented himself by saying:

    I would have a big trouble if I return to China.

  7. The Applicant was not able to add anything more to his case. 

  8. I have read the written submissions prepared by Mr Kennett of counsel on behalf of the First Respondent. He notes, and correctly so, that the present proceedings were commenced by an application filed on the 17th November 2005 outside the time permitted by s.477(1A) of the Migration Act as it then stood. He submits; correctly in my view, that because s.477(1A) at that time applied only in respect of a ‘privative clause decision’, it is necessary to deal with the substance of the application in order to determine whether the time limit applied.

  9. In respect of the Applicant's claims, I am satisfied that there is no particularisation of the claimed failure by the Tribunal to follow the procedures set out in the relevant subdivision of the Migration Act. I am not able to discern any failure to follow the procedure in the Act and the Applicant was not able to point to any.

  10. The Applicant's second ground, which complains that he fears persecution upon return to his home country and that he does satisfy the requirement of a visa, is no more than a challenge to the Tribunal's factual findings. Merits review is not available on a judicial review of an administrative decision. 

  11. The third ground asserts that the facts and evidence provided by the Applicant to the Tribunal established the genuineness of the Applicant's asserted fear. The Applicant claims that all the statutory elements have been made out and that therefore he qualifies for a visa.  That again is no more than a challenge to the Tribunal's factual findings. The fact is that the Tribunal was not satisfied with the credibility of the Applicant's evidence. 

  12. The Tribunal asked the Applicant a number of questions about his claim to be a Christian and therefore fear persecution at the hands of the Chinese authorities. The Tribunal was not satisfied from the Applicant's evidence that he was or ever had been a Christian. The Tribunal was not satisfied that he knew any of the basic principles of the Christian religion. The fact is that the Applicant's evidence was not sufficient to satisfy the Tribunal that the Applicant did meet the criteria for a visa under s.65 of the Act.

  13. Unless the Tribunal is affirmatively satisfied that an applicant meets the criteria for a visa, the Tribunal must refuse the visa. To my mind the Applicant has not established any jurisdictional error. He is not legally represented and I have read the decision myself in order to see whether I can discern any arguable case that there may have been a jurisdictional error not referred to by the Applicant. I am unable to ascertain any suggestion of a jurisdictional error in the Tribunal's decision. 

  14. It follows that the decision is a privative clause as defined in


    sub-s.474(2) of the Migration Act. As the decision is a privative clause decision I am satisfied that the application was made out of time in that it was made outside the 28 day period set out in sub-s.477(1A) of the Migration Act as it then stood. It follows therefore that the application is not competent and I propose to dismiss it.

  15. The Applicant has been wholly unsuccessful in his claim and in my view it is appropriate that the Court should make an order for costs in favour of the First Respondent Minister. I propose to make such an order and I am satisfied that the sum of $5,500.00 inclusive of counsel's fees is a reasonable amount to claim in the circumstances.  I make the following orders.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  9 August 2006

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Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22