NBDB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 43 (4 March 2005)

Last Updated: 11 October 2005

FEDERAL COURT OF AUSTRALIA

NBDB v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 43

NBDB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1485 OF 2004


MOORE, MANSFIELD and DOWSETT JJ
4 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1485 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBDB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, MANSFIELD & DOWSETT JJ
DATE OF ORDER:	4 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.














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 1485 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBDB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD & DOWSETT J
DATE:	4 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 When this matter was called the appellant failed to appear. There is an affidavit before the Court indicating that she was given due notice of the date of hearing. Exhibit A, a letter from the solicitors for the respondent, suggests that she was reminded of the hearing date as recently as 24 February 2005. In those circumstances the Court has decided to proceed to dispose of the matter both pursuant to s 25(2B) of the Federal Court of Australia Act 1976 (Cth) and pursuant to O 52 r 38A subr 1(d) Federal Court Rules, considering the merits of the matter.

2 The appellant is a citizen of the People’s Republic of China. In May 2003 she entered Australia on a visitor’s visa. Shortly thereafter the appellant applied for a protection (Class XA) visa, claiming to fear persecution in China on account of her association with Falun Gong. She had first become an active adherent in 1994. In 1999, the Chinese government "cracked down" on that organization. The appellant claimed that she became a target of police persecution. She was placed in a detention centre, accused of disturbing social order, sabotaging the rule of the Chinese Communist Party and encouraging people to act against the Chinese government. She claimed that she was tortured and beaten severely, interrogated and denied food and water. Other people were also tortured. Some disappeared. She claimed that she was released after her husband paid a fine and she offered a guarantee that she would not participate in Falun Gong activities. She felt great psychological pressure as a result of this and was on the verge of a breakdown. She decided to flee to Australia and obtained a passport and Australian visa. She entered Australia on 7 May 2003 and, on 22 May 2003, made her current application. A delegate of the respondent (the "Minister") declined the application. She applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision.

3 On 10 November 2003 the Tribunal wrote to the appellant, advising that it had considered all of the material placed before it concerning her application and was unable to make a decision in her favour on the basis of that information. She was invited to give oral evidence and present argument in support of her claim at a hearing on 9 December 2003. On 1 December 2003 she advised the Tribunal that she did not wish to give oral evidence and agreed to the Tribunal proceeding in her absence.

4 The Tribunal noted that the appellant had departed from China in 2003, having obtained a passport in her own name in December 2001. The Tribunal also noted that the persecution of Falun Gong had begun in 1999 and inferred from her evidence that she had been arrested shortly thereafter. She apparently suffered no further persecution prior to her departure in 2003. In any event the Tribunal was not satisfied that she had experienced any mistreatment in China at a level which would amount to persecution for a Convention reason. It also concluded that there was no real chance that she would suffer any such persecution upon her return to China. These views were clearly based upon the fact that the Tribunal was dissatisfied with the adequacy of the information provided in support of the application. As we have said, she declined an opportunity to elaborate upon her claims. In those circumstances, it is hardly surprising that the Tribunal was not satisfied that she had previously suffered serious harm or mistreatment at the hands of the Chinese authorities for a Convention reason or that she faced a real chance of such mistreatment on return to China.

5 On 25 March 2004 the appellant sought review of the Tribunal’s decision in this Court on the following grounds:

‘1. Refugee Review Tribunal (RRT) found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, RRT ignored parts of the applicant’s claims in the statement attached to her application for the relevant visa submitted. In doing so, RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.

2. The above jurisdictional error affected the exercise of power of RRT.’

6 Hill J heard the application at first instance. The appellant appeared before his Honour, assisted by an interpreter. She submitted that everything she had said in her visa application was true and that she had been persecuted in China. She said that she was now in a democratic country and hoped to be able to stay here. She said that if she were forced to return to China she would experience lots of trouble and that the safety of her life could not be guaranteed. His Honour understood this to mean that her safety would be threatened. The appellant further complained that the Tribunal did not, ‘pay enough attention to people like us’. His Honour understood this to mean that had the Tribunal paid sufficient attention to her claims, it would have accepted them. The appellant also said that the Tribunal did not, or perhaps the government did not, provide the help ‘they should provide to us’. She complained that the Tribunal, or perhaps the government, had not made any investigation relating to her case, despite her claims being true. She said that if she returned to China ‘lots of tragic things would happen’.

7 Hill J concluded that such challenge as the appellant had made to the decision went to the merits rather than to any question of jurisdictional error. Nonetheless, his Honour read carefully the decision of the Tribunal and concluded that it disclosed no evidence of jurisdictional error, concluding at [20]:

‘Ultimately the question whether the Tribunal is or is not satisfied that a person has a well-founded fear of persecution is a matter for the Tribunal itself. It is not a matter for this court. No doubt by failing to attend the Tribunal hearing the applicant made it impossible for the Tribunal to ask her further questions which it may have wished to ask. Be that as it may the applicant has not made out any ground for judicial review of the Tribunal’s decision and it follows accordingly that her application must be dismissed with costs.’

8 The notice of appeal asserts the following grounds:

‘2.(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.
(2) The decision involves errors of law.
(3) The judge did not hear out the statement given at the court by the appellant.’

9 Presumably, paragraphs 2(1) and 2(2) relate to proceedings in the Tribunal rather than to the proceedings before Hill J. Although grounds (1) and (2) are in forms claims of jurisdictional error, or might constitute claims of jurisdictional error, we have been able to find nothing in the reasons of the Tribunal which would support such assertions. As to ground (3) concerning the proceedings before Hill J, we can similarly see no basis for any such criticism of his Honour’s decision. In those circumstances 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 Justices Moore, Mansfield and Dowsett.

Associate:

Dated: 8 April 2005

Counsel for the Appellant:	The Appellant did not appear.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 March 2005
Date of Judgment:	4 March 2005