NAVI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 119

FEDERAL COURT OF AUSTRALIA

NAVI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 119 NAVI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1092 of 2003 BRANSON J 4 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1092 of 2003

BETWEEN: NAVI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 4 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1092 of 2003

BETWEEN: NAVI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 4 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 When this proceeding was called on for hearing the applicant was absent. Having regard to the history of the matter, to which reference is made below, I determined that the hearing should nonetheless proceed generally (see O 32 r 2(1)(d) of the Federal Court Rules). 2 The proceeding is an application under s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') dated 1 July 2003. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ('the delegate') by which the applicant was refused a protection visa. The applicant, who the Tribunal accepted is a citizen of the People's Republic of China, arrived in Australia on 20 April 2002. On 7 May 2002 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA'). The application included a typed document dated 25 April 2002 headed 'Statement' and bearing the name of the applicant. 3 The statement detailed the applicant's claims. By the statement the applicant claimed that if he returned to the People's Republic of China he would be persecuted on account of his religion, Falun Gong. He claimed that the local government had used its powers to punish him as a Falun Gong practitioner to the detriment of his business. He claimed to feel watched and persecuted and scared to return to the People's Republic of China, particularly after reading of the treatment of Falun Gong practitioners in the People's Republic of China. 4 On 17 May 2002, the delegate for the Minister wrote to the applicant. The letter stated that the applicant's claims were vague and lacking in detail and requested the applicant attend an interview. The letter also notified the applicant in some detail of the issues that would be raised at the interview. The applicant failed to attend the interview. On 13 June 2002, the delegate refused to grant the applicant a protection visa. 5 On 26 June 2002, the applicant applied to the Tribunal for review of the delegate's decision. In the section of the application requesting information about the applicant's refugee claims the applicant wrote 'Please see my file at DIMIA'. 6 On 8 April 2003, the Tribunal, which had concluded that it was unable to make a decision in the applicant's favour on the material it had before it, invited the applicant to attend a scheduled hearing. The applicant did not attend the scheduled hearing despite formally accepting the invitation. 7 The Tribunal sent the applicant two further letters. The letters invited the applicant to comment on adverse anonymous information it had received about refugee applicants from Zheng Zhou, the area the applicant claimed that he was from. The second of the two letters, sent after the applicant had failed to attend the hearing, also notified the applicant that a decision on the review of his case might be made without further notice. The applicant did not provide the Tribunal with further information or comment. 8 On 1 July 2003 the Tribunal affirmed the decision of the delegate of the Minister. The Tribunal was not satisfied that the applicant has a well‑founded fear of persecution in the People's Republic of China for a Convention reason. The Tribunal's lack of satisfaction had several bases. First, the Tribunal concluded that the applicant's claims were vague, unsubstantiated, unclear and lacking in particularity. For these reasons the Tribunal was not satisfied that the applicant is a member of the Falun Gong movement. Secondly, the Tribunal found that the applicant was of no adverse interest to the Chinese authorities because he had not come to the attention of the authorities when he left the People's Republic of China despite rigorous checking and exit procedures. It therefore was not satisfied as to the truth of his claim regarding the pressures put on him by the authorities of the People's Republic of China. Thirdly, the Tribunal concluded that, if the applicant were a Falun Gong member, he was at most an ordinary member and rejected his claims to fear persecution because of that membership should he return to the People's Republic of China. Additionally, the Tribunal concluded that the applicant's failure to attend an interview with DIMIA or a hearing before the Tribunal indicated that he was not prepared to engage in a determination process because his claims had no substance. 9 The application filed in this Court purports to give details of the grounds on which the applicant claims to be entitled to relief. It may be that the details have simply been copied from an application filed in another matter. They contain a reference to 'her application' although the applicant is male. The details given are not readily related to the actual decision of the Tribunal. They state that the Tribunal ignored parts of the applicant's claim in a statement attached to 'her application for the relevant visa submitted'. The parts of the claim allegedly ignored are not identified. A comparison of the Tribunal's reasons for decision and the applicant's statement does not assist in the identification of claims apparently ignored by the Tribunal. 10 As the analysis of the Tribunal's reasons given above reveals, the decision of the Tribunal rested on several bases. Importantly, the Tribunal inferred from the applicant's failure to attend for interview by DIMIA or the proposed Tribunal hearing that the applicant was not willing to engage in a determination process because his claims had no substance. In view of the Tribunal's assessment of the applicant's claims as vague, unsubstantiated, unclear and lacking in particularity this inference was clearly open to be drawn by the Tribunal. As is mentioned above, the applicant has also failed to attend this Court hearing. Absent any credible claims made by the applicant there was no bases upon which the Tribunal could have been satisfied that the applicant was entitled to a protection visa. 11 Having given consideration to the Tribunal's decision, I am satisfied that there is no proper basis upon which the decision of the Tribunal is open to be reviewed by this Court or at all. The application is dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.