VLAC v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 370

FEDERAL COURT OF AUSTRALIA

VLAC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 370

MIGRATION- protection visa - appeal from a decision of Federal Magistrates Court

Federal Court of Australia Act 1976 (Cth) s 25(1A)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474

NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24
Orr v Holmes (1948) 76 CLR 632
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Abebe v Commonwealth of Australia (1999) 197 CLR 510

VLAC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 945 OF 2003

CRENNAN J
5 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 945 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT CONSTITUTED BY PHIPPS FM

BETWEEN:	VLAC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CRENNAN J
DATE OF ORDER:	5 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant is to pay the respondent’s costs.

3.   Liberty to apply in respect of fixing the costs of the respondent referred to in paragraph 2.  

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 945 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT CONSTITUTED BY PHIPPS FM

BETWEEN:	VLAC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CRENNAN J
DATE:	5 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China who holds a genuine passport of that country which is valid to 6 May 2005.  She is fluent in the Tianjin language, is of Han ethnicity and is a Buddhist.  When she arrived in Australia on 1 May 2001 the appellant was on her sixteenth visit to this country.  She made an application for a protection visa (Class XA) on 16 July 2001. 

2. On 23 October 2001 a delegate of the respondent refused to grant the appellant a protection visa.  The delegate found that the appellant did not have a real chance of Convention based persecution if she returned to China and that the appellant’s fear of persecution is consequently not well founded. 

3. On 19 November 2001 the appellant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  In her application the appellant claimed that she has a real chance of being persecuted by the Chinese government because she holds “a different political opinion to the Chinese government”.  A hearing before the Tribunal was convened for 8 May 2000 in Melbourne at which the appellant was provided with a Mandarin speaking interpreter.  At the Tribunal hearing the appellant advanced an additional claim, although did not expand upon it, that she may experience problems if she returned to China because she is a Buddhist.  The Tribunal affirmed the delegate’s decision and handed down its decision on 31 May 2002. 

4. The appellant filed an application for review of the decision of the Tribunal in the Federal Court on 5 December 2002. The proceeding was transferred to the Federal Magistrates Court and on 18 September 2003 Phipps FM dismissed the application. The appellant filed a notice of appeal from the whole of the judgment of Phipps FM on 9 October 2003. In accordance with s 25(1A) of the Federal Court of Australia Act 1976 it was determined that the appeal be heard and determined by a single judge of this court.  At the hearing the appellant was provided with an interpreter in the Mandarin language.

5. The appellant’s notice of appeal sets out the following grounds:

   “The grounds on which the Appellant seeks orders under s 39B of the Judiciary Act, in relation to the decision are as follows: -

   A. There was an error of law in the Court’s decision constituting jurisdictional error.

   Particulars
   I disagree with the decision of the Federal Magistrate and I will provide further particulars when I am provided with a copy of the decision of the Magistrate.

   B. There was a procedural error in the Court’s decision constituting an absence of natural justice which was also a jurisdictional error.

   Particulars
   I repeat the particulars as above.”

   The essence of the appellant’s complaint, as set out in her written submission, is that Phipps FM failed to take into account relevant considerations.  The particular considerations in issue are:

   ·The fact that she was unwilling to return to China because she feared persecution.

   ·Her family history in or about 1949 and that despite relocating to another part of China her family suffered when the new government found out that her father had been an army officer in the previous government.

   ·That even though she had graduated from college she was forced thereafter to work as a labourer and that this was part of the government’s actions to persecute her because her family’s past political opinion.

   ·That even though she has previously returned to China, the Public Safety Bureau followed her movements.

   ·That religion is not tolerated in China and as a Buddhist she has a likelihood of experiencing problems.

6. At the hearing the appellant made a brief oral submission in which she sought to raise a fresh matter of fact in support of her claims.  Counsel for the respondent contended that the court is confined to looking at what the Tribunal did on the material that was before the Tribunal.  As a Full Court explained in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 the conditions under which an appellate court will permit fresh evidence to be adduced are stringent: it is not enough that the new evidence is relevant and otherwise admissible and may have affected the result at trial. The party must show it could not with reasonable diligence have adduced the evidence at the trial and secondly the evidence must be such that very probably the result would be different. See: Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. In this instance neither condition was satisfied. In any event, the opportunity afforded to the appellant to address the court in relation to her appeal confirmed that her complaints are confined to the merits of the Tribunal’s decision.

7. The respondent submitted, correctly in my view, that each of the topics referred to by the appellant and the Tribunal’s findings in respect of them were considered by Phipps FM.   In the judgment published 6 November 2003 Phipps FM said:

   “In its reasons the Tribunal said it accepted the [appellant’s] claims that members of her family were persecuted in the past.  It accepted that the [appellant] may have been denied the opportunity to obtain employment in some occupation because of her background.  The Tribunal noted that the [appellant] was able to complete 13 years of schooling and had worked in a factory for many years in the immediate past she had been employed as a manager in a private company.  The Tribunal found that the hardship in the past was not of such severity as to constitute persecution.  The Tribunal said that the [appellant] provided no details of any problems she had experienced in recent years because of her family background.

   The Tribunal then made this finding of fact, that is, if the [appellant] were to return to China now or in the foreseeable future there is not a real chance that she would be persecuted by reason of her family background.  The Tribunal then considered whether the [appellant] might experience problems if she returned to China because she is a Buddhist and referred to a United States Department of State report in relation to that and concluded that the Tribunal was not prepared to accept that the [appellant] would be persecuted if she returned to China simply because she is a follower of Buddhism. 

   The Tribunal noted that the [appellant] had been able to obtain a passport in China and travel to Australia and return to China and travel back to Australia many times.  The Tribunal said it understood that the [appellant] felt free to apply for refugee status only recently when both her children had left China but then said that any fears she may have that applying for refugee status would cause her children problems and she would not be able to visit them in China were not reasons which provided a Convention‑related explanation.

   The Tribunal concluded its findings with this paragraph:

   In view of the [appellant’s] frequent visits to China over the past few years, which apparently occurred without incident apart from the PSB checking her movements the Tribunal is not satisfied that the [appellant] had a subjective fear of persecution when she applied for refugee status, nor is the Tribunal satisfied, taking into account the issues discussed above, that the [appellant’s] claimed fear of persecution is objectively well founded.  The Tribunal finds that if the [appellant] were to return to China now or in the reasonably foreseeable future that there is not a real chance that she would be persecuted for reason of her membership of a particular social group, her family or for reason of her religion or her political opinion, whether imputed or actual, or for any other Convention reason.  The Tribunal finds that the [appellant’s] fears are not well founded.

   All of the findings of the Tribunal are matters of fact.  Nothing is put forward and nothing that I can discern gives rise to jurisdictional error.  The Tribunal has identified and considered each of the bases which might bring the [appellant] within the Convention.  It has rejected each of those bases.  There is no jurisdictional error and no grounds for setting aside the Tribunal’s decision.” 

8. The present application is governed by the privative clause contained in s 474 of the Migration Act 1958 (Cth) which came into operation on 2 October 2001 and to succeed in this appeal the appellant must show there was jurisdictional error of the nature described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The court cannot undertake a review of the merits which is what is sought by the applicant: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [37]. The federal magistrate did not fall into error in dismissing the appellant’s application for judicial review.

9. The appeal must be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:             7 April 2004

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 March 2004
Date of Judgment:	5 April 2004