NACE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 47 (6 March 2003)

Last Updated: 25 March 2003

FEDERAL COURT OF AUSTRALIA

NACE of 2002 v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 47

NACE OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

N 800 OF 2002

LINDGREN, STONE AND DOWNES JJ

6 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 800 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NACE OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE OF ORDER:	6 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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	N 800 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NACE OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE:	6 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant appeals from a decision of a Judge of the Court. The appellant arrived in Australia on 22 August 1997. He applied for a protection visa on 24 September 1997. On 16 December 1997 a delegate of the respondent Minister (respectively "the Delegate" and "the Minister") refused to issue a protection visa. The appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of the Delegate's decision. On 14 October 1998 the Tribunal affirmed the Delegate's decision. The appellant applied to this Court for a review of the Tribunal's decision.

2 On 28 April 1999 this Court set aside the Tribunal's decision and remitted the matter to the Tribunal. On 14 July 1999 there was an oral hearing before the Tribunal differently constituted. The Tribunal decided on 24 December 2000 to affirm the Delegate's decision. The Tribunal handed down that decision on 24 January 2002. On 11 February 2002 the appellant applied to this Court for a review of this second decision of the Tribunal. On 17 July 2002 the primary judge heard the appellant's case and dismissed the application for review. It is from this decision that the appellant now appeals to this Court.

3 The appellant's claim was that he had a well-founded fear of persecution on the ground of religion if he were to return to his country of nationality, the People's Republic of China. The religion or religious group in question is referred to as "Yi Guan Dao". It is also referred to as "Tien Tao". The Tribunal Member ("the Member") considered the evidence, including independent country evidence, and concluded that this religious group does not exist in mainland China today. The Member also concluded that even if the appellant did belong to such a group and practise as a follower of it in China today, he would not be persecuted by the Chinese authorities. The Member made a specific finding that the Chinese authorities have not taken action against any citizen associated with the particular religious organisation in question since the early 1980s.

4 The primary judge explained to the appellant that he faced great difficulties in view of the factual findings of the Tribunal. His Honour pointed out that the making of an erroneous decision of a factual nature does not ordinarily entail an error of law, even though a person may strongly disagree with it.

5 In his notice of appeal to this Court the appellant has set out the following grounds:

"I was treated unfairly in RRT. My statement is as follows:

1. RRT has shown great discrimination and bias towards my religious belief. The judge thought the Chinese government has banned `Yi Guang Dao' because `Yi Guang Dao' has been doing things against the government.

2. RRT has quoted the references from Human Rights Organization all the time, but given little consideration to the statement and evidences provided by me and never carried out any investigation on my case, which I strong think is unfair for me, the applicant.

3. When I was attending the hearing held by RRT and presenting my statement, I was constantly interrupted.

4. RRT thought my wife has received the treatment in China for her heart disease, which is proof that my family members haven't been persecuted in China at all. Consequently, if I go back to China, there will be no persecutions for me, either. I strongly think it is only the assumption deduced by the judge.

Because the member of RRT holds discrimination and bias, my case was wrongly decided. I am very grieved for that."

6 The appellant relies on written submissions which he forwarded to the Court and on his oral submissions on the hearing today. In his written submissions the appellant began by attacking the decision of the Delegate and matters stated in the Delegate's "decision record". We put those matters to one side. We are not concerned with the decision of the Delegate.

7 In so far as they attack the reasoning of the Tribunal, the appellant's written submissions attack its factual conclusions. A theme which occurs both in the written submissions and the oral submissions is that the Tribunal should not have relied on its "subjective" views. In a sense, the Tribunal is required to rely on its subjective views: it is required to reach its own conclusions as to the facts. The appellant would suggest a dichotomy between "the true [objective] facts" and "the Tribunal's [subjective] view of the facts". Without embarking on a philosophical discussion, we simply observe that any attempt to understand, describe and evaluate factual material will necessarily implicate the mind of the person making that attempt. The processes mentioned are assigned by the Migration Act 1958 (Cth) to the mind of a member of the Tribunal, and not to the mind of any other person.

8 We agree with the primary judge that no error of law is disclosed in the reasons of the Tribunal.

9 For the above reasons the Court orders that:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

Associate:

Dated: 25 March 2003

The Appellant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2003
Date of Judgment:	6 March 2003