NAYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 295

FEDERAL COURT OF AUSTRALIA

NAYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 295 NAYB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2162 OF 2003 STONE J 18 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2162 OF 2003

BETWEEN: NAYB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 18 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. That the application be 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 N 2162 OF 2003

BETWEEN: NAYB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 18 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant in this matter is a citizen of the People's Republic of China who arrived in Australia on 19 December 2002. He lodged an application for a protection visa on 31 December 2002. That application was refused in turn by a delegate of the respondent Minister and by the Refugee Review Tribunal. 2 The applicant now applies to this Court under s 39B of the Judiciary Act 1903 (Cth). In his initial application filed on 1 December 2003 the applicant claimed that the Tribunal had ignored part of the claims he had made in the statement accompanying his application for a protection visa and so fell into jurisdictional error. The application did not contain any details in support of that claim. 3 At the hearing before me, the applicant, having been given a considerable opportunity to make submissions in relation to his original application, sought leave to file in Court an amended application which substituted new grounds of review. Those grounds alleged that the Tribunal failed to comply with s 426A of the Migration Act 1956 (Cth) ('Migration Act'), that it constructively failed to exercise its jurisdiction and that its decision was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed. 4 The respondent did not oppose the filing of the amended application although counsel for the Minister did seek an opportunity to file additional submissions after the hearing should that be necessary. On that basis I allowed the applicant to file the amended application in court. As matters transpired it was not necessary for the respondent to file further submissions. 5 The background to the applicant's claim is that he is a Christian of long standing who claims to fear persecution in the People's Republic of China on the grounds of religion. He claims that the attitude of the Chinese Government was exacerbated because of his support for refugees to China from North Korea. 6 By letter dated 10 September 2003, the Tribunal wrote to the applicant inviting him to attend the hearing before the Tribunal on Friday 3 October 2003. That letter enclosed a response form headed, "Response to Hearing Invitation". The Tribunal noted in its reasons for decision that that the completed response form, indicating that the applicant would attend the hearing and that he required a Mandarin speaking interpreter, was received by facsimile in the Tribunal on 12 September 2003. 7 On the day of the hearing, the applicant did not attend before the Tribunal and neither he nor his authorised representative contacted the Tribunal. The Tribunal stated that pursuant to s 426A of the Act it decided to make its decision on the papers without further recourse to the applicant. In giving its reasons for decision the Tribunal made the following comments: "The applicant has provided only vague details in support of his claims. There is nothing to support the applicant's claims in relation to his Christianity other than his unsubstantiated and unclear assertions. There are insufficient particulars provided by the applicant, such as his denomination, whether he attended a state-run church or a house church in the PRC, what adverse attention, if any, has been shown by the PRC authorities to the members of the church, whether he is an ordinary member or has a leadership role, and whether he proselytises. Similarly, there are no claims or particulars about the applicant's religious activities in Australia. I have been unable to ask questions regarding his religion which would indicate the degree of his religious commitment and to enable me to be satisfied that the applicant is a practising Christian.