NARB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1217

FEDERAL COURT OF AUSTRALIA NARB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1217 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 applied NARB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N638 of 2003 JACOBSON J 27 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N638 of 2003

BETWEEN: NARB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON

DATE OF ORDER: 27 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The Applicant 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 N638 of 2003

BETWEEN: NARB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON

DATE: 27 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application of review of a decision of the Refugee Review Tribunal ("RRT") handed down on 29 April 2003. The RRT affirmed a decision of a delegate of the Minister refusing to grant the Applicant a protection visa. 2 The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 29 December 2001 and he applied for a protection visa on 8 January 2002. The basis for the Applicant's claim for a protection visa was that he feared persecution in China on the ground of religion, namely that he is a practitioner of Falun Gong. This gave rise to a claim on the ground of religious or political persecution. The Applicant claimed that he supported the Falun Gong movement financially, that he assisted the publication of printed materials, and that he donated goods from his business to other Falun Gong practitioners. He claimed that after the crackdown by the Chinese Government on the Falun Gong movement in July 1999 he was identified as a leader of the organisation and that he was responsible for planning to destroy the Chinese Government. He claimed that as a result of this he was detained, interrogated, tortured and threatened with being charged for a political crime. He claimed that his business was destroyed. He also claimed that he obtained a passport through the payment of money and that he fled China in fear of his life and liberty. 3 In May 2002 the Applicant's visa application was refused by a delegate of the Minister. Prior to reaching a decision the Delegate wrote to the Applicant advising him of relevant information in the Department's possession concerning the practice of Falun Gong in China and also advising him of the Chinese Government's attitude towards practitioners of Falun Gong. The Delegate invited the Applicant to comment on the information and to reply to issues which the Delegate raised concerning the Applicant's claims. The letter was dated 22 March 2002. The Applicant did not reply to the letter. On 13 May 2002 the Applicant applied to the RRT for a review of the decision of the Delegate. 4 In answer to a question in the application form which asked the Applicant to say why he considered himself to be a refugee, the Applicant merely stated "please see my file in DIMA" (sic). On 14 January 2003 the RRT wrote to the Applicant advising him that it had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone. The RRT invited the Applicant to attend a hearing before the RRT on 7 April 2003, the Applicant responded to the notice by indicating that he did wish to come to the hearing. However the Applicant did not attend the hearing nor did he contact the RRT to explain his failure to attend. The Applicant provided no written submissions or other documents to the RRT. 5 In its decision and reasons the RRT stated that it was not required to accept uncritically any and all of the allegations made by the Applicant. The RRT cited various authorities to support this proposition including a decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. The RRT referred to the fact that the Delegate had alerted the Applicant to the Delegate's concerns about country information and about the Applicant's credibility. The RRT stated that it shared the Delegate's concerns about the Applicant's claims. The RRT stated that there was nothing to suggest that the Applicant's activities would attract the status of a leader of the Falun Gong movement. The RRT stated that if the Applicant had attended the hearing the RRT member would have queried him about this. The RRT member said that she would also have asked him about the nature of his practice and various other questions pertinent to his claim. The RRT concluded by stating "without more, I cannot regard the applicant's claims as credible". 6 The Applicant filed an application for review of the RRT's decision on 28 May 2003.