NBIK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1059 (8 August 2006)

Last Updated: 16 August 2006

FEDERAL COURT OF AUSTRALIA

NBIK v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 1059

NBIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 802 OF 2006

JACOBSON J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 802 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBIK Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The Refugee Review Tribunal be joined as second respondent to the appeal.
2.	The appeal be dismissed.
3.	The Appellant pay the First Respondent’s costs fixed in the amount of $1500 pursuant to O 62 r 4(2)(c).

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 802 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBIKAppellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRSFirst RespondentREFUGEE REVIEW TRIBUNALSecond Respondent

JUDGE:	JACOBSON J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1

The appellant’s notice of appeal seeks leave to raise two grounds of appeal from the judgment and orders of Federal Magistrate Scarlett dated 10 April 2006. On that date the learned Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (RRT), refusing to grant the appellant a protection visa. The appellant is a citizen of the People’s Republic of China. She is not legally represented and has appeared in person before me this morning. She has had the assistance of a Cantonese interpreter. It is plain from what she said this morning that she has no real understanding of what is involved either in her notice of appeal or in the appeal process generally.

2

Because she is unrepresented I have read the papers carefully so as to be able to deal with the grounds raised in the notice of appeal and also to see whether there is any other basis upon which there might be said to have been jurisdictional error committed by the RRT. Neither of the grounds of appeal set forth in the notice of appeal was raised before Federal Magistrate Scarlett. That is why leave to run both of those grounds is required. The first ground is that the RRT fell into jurisdictional error in relying upon country information that was not up to date. The second ground is that the RRT based its decision on country information which was not put to the appellant. No other ground of appeal is raised in the notice of appeal.

BACKGROUND

3	The appellant claims to have a well-founded fear of persecution on the ground of her adherence to the practice of Falun Gong. She arrived in Australia on 17 December 2003 and made an application for a protection visa shortly afterward. She claimed to have been persecuted in China in 1999 when she was arrested and forced to confess and renounce the practice of Falun Gong. The appellant also claimed to be have been arrested and placed in detention some time after her arrest in 1999. Initially she said in writing that she was placed in detention in May 2000 but in the hearing before the RRT she said that this event occurred in May 2001.
4	Additionally, the appellant claimed that after her release from detention she was forced to leave her employment. The RRT accepted that some Falun Gong practitioners in China have been persecuted by the authorities. However, it rejected the appellant as an untruthful witness and was therefore not satisfied that she was a practitioner of Falun Gong. The RRT gave detailed reasons for its rejection of the appellant’s claims. It reviewed and carefully considered the appellant’s evidence. It set out a detailed list of what it considered to be inadequacies and inconsistencies in the appellant’s evidence, which led the RRT to reject her claims. It is unnecessary to repeat the RRT’s detailed analysis.
5	In summary, and without referring to all of the reasons given by the RRT, it found that the appellant’s oral evidence was at times cautious, evasive and rehearsed. It also found that the appellant was unable to give a satisfactory explanation of what was involved in the practice of Falun Gong.
6	Federal Magistrate Scarlett gave three reasons in finding that there was no jurisdictional error in the decision of the RRT. First his Honour found that there was no breach of s 424A of the Migration Act 1958 (Cth) because in her application for review by the RRT the appellant relied on the content of her protection visa application. He cited the authority of the decision of Merkel J in VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10]- [12] in support of the finding.
7	Second, Scarlett FM found that the appellant sought a merits review. Third, his Honour was satisfied that the RRT’s decision was based largely upon its factual finding as to the credibility of the appellant’s evidence.

DISCUSSION

8	The principle to be applied in migration appeals when leave is sought to run grounds not argued below was stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. The court there stated that leave may be granted if a point that was not taken below but which clearly has merit is advanced and there is no real prejudice to the respondent in permitting it to be agitated. However, where there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave will ordinarily be refused.
9	I do not need to have regard to the fact that the failure to take the various points before the Federal Magistrate was not explained. This is because I am satisfied that neither of the two grounds stated in the notice of appeal has any merit. Accordingly, applying the approach stated in VUAX, I would not give leave to run either of those grounds on appeal. My reasons can be stated shortly. There are two principal reasons why the first ground of appeal has no prospects of success.
10	The first reason is that the use which a tribunal makes of country information will ordinarily be a question of fact or a finding within jurisdiction. The Full Court decisions in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [14]- [15] and SFTB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 108; (2003) 129 FCR 222 at 231, at [36] support that view. I am satisfied that the RRT’s findings in the present case were findings of fact made within jurisdiction.
11	The second reason is that that RRT’s rejection of the appellant’s claims turned almost entirely upon its finding that the appellant was not a credible witness. Insofar as it relied upon country information, its finding was favourable to the appellant’s case because the RRT accepted that some Falun Gong practitioners have been persecuted. There was nothing to show that even if there was any error on the RRT’s part in the use it made of country information, such an error contributed to its decision; see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 384; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at [82] and [84].
12	There are three principal reasons why the second ground of appeal stated in the notice of appeal has no prospects of success. The first reason is that there is nothing in the notice of appeal to identify any item of country information which was not put to the appellant. Secondly, the country information the RRT took into account, as the reason or part of the reason for affirming the decision of the delegate, was information that was not "specifically about the applicant" and it therefore fell within the exception contained in s 424A3(a) of the Migration Act. Third, there was nothing to suggest that any relevant country information was not put to the appellant, cf Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at 595, at [122].
13	It follows that I would not grant leave to raise either of the issues which the appellant seeks to run in her notice of appeal. Quite apart from that, I am satisfied that the decision of the RRT discloses no jurisdictional error and I can see no error whatsoever in the decision of the Federal Magistrate. Accordingly the order that I will make is that the appeal be dismissed with costs.

ORDERS

14	The orders that I will make are that:

(1) the appeal be dismissed;
(2) the appellant to pay the costs of the first respondent of the appeal, fixed pursuant to O 62 r 4(2)(c) in the gross sum of $1500;
(3) the Refugee Review Tribunal be joined as the second respondent to the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 8 August 2006

	The Appellant appeared in person
Counsel for the Respondent:	M O'Meara
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006