NAYP v Minister for Immigration & Multicultural & Indigenous Affairs 2004] FCA 592

FEDERAL COURT OF AUSTRALIA

NAYP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 592 NAYP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N2545 of 2003 JACOBSON J 10 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2545 OF 2003

BETWEEN: NAYP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON

DATE OF ORDER: 10 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. 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 2545 OF 2003

BETWEEN: NAYP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON

DATE: 10 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal handed down on 27 November 2003. The Refugee Review Tribunal ("RRT") affirmed a decision of a delegate of the Minister given on 25 February 2003 refusing to grant the applicant a protection visa. 2 The relevant background facts appear in the reasons for decision of the RRT. The applicant is a citizen of the Peoples Republic of China ("PRC") who arrived in Australia on 5 February 2003. On 14 February 2003 she lodged an application for a protection visa. As the RRT observed, the applicant's central claim was that she and her late husband were persecuted by the Chinese authorities in 1989 when they both joined a student movement. The applicant's claim was therefore that she had a well-founded fear of persecution on political grounds. 3 The facts on which the applicant's claim was based were set out in a written statement to which the RRT made reference in its reasons for decision. The statement says that the applicant entered university in the PRC and that the applicant commenced to study law in 1986. The statement says that the applicant met her husband at the university in 1987 and that they married in 1989. She says that she and her husband organised students at their university to support a student campaign which broke out in 1989. She says that she and her husband were present at Tiananmen Square when students "undertook a fast". She also says that she and her husband were at Tiananmen Square when the army fired on the students and that she and her husband witnessed "the whole massacre" which took place. 4 The statement then says that as a result of these events the applicant's husband lost his job at the university and that the applicant could not get her degree even though she had met the necessary academic requirements. She says that in order to survive she and her husband had to do "labour works" and that her husband's health did not enable him to do that type of work but in order to support the family he had to try to do what was required of him. She says in the statement that when her husband's health condition deteriorated they could not afford medical treatment and that her husband died last year of lung cancer. She says that since then she has been living "in sorrow and poverty". 5 The statement concludes by saying that the applicant obtained a passport with the help of friends and that she obtained an Australian visitor's visa. She also says in the statement that her passport was kept "by the tourist group leader". 6 The RRT noted that the applicant was invited to attend an oral hearing but that she did not attend. The RRT's reasons refer to the relevant chronology dealing with the correspondence about this issue. 7 As the RRT observed, the applicant was invited to attend and give oral evidence at a hearing on Friday, 17 October 2003. A copy of the letter of invitation is contained in the court book. The letter is dated 25 September 2003 and it indicates that a copy was sent to Mr Jack Meng, of Jack Meng Immigration and Translation Company. Mr Meng was named in the application for review as the applicant's authorised recipient for correspondence with the RRT. There is a document in the court book which indicates that the letter of invitation addressed to the applicant was returned to the sender. 8 However, the RRT received a response from the applicant's migration agent indicating that the applicant wanted to give oral evidence at the hearing. The response was dated 29 September 2003 and is referred by the RRT in its reasons. The reasons given by the RRT state that on 16 October 2003 the RRT advised the applicant by telephone "through her adviser" that the hearing had been postponed and that it would be conducted on Friday, 24 October 2003. The RRT's reasons state that the adviser informed the RRT that the postponement was agreeable to the applicant. 9 The RRT's reasons refer to a letter of 17 October 2003 in which the RRT confirmed the change of date and the reasons state that the letter was sent by facsimile to the applicant's adviser. A copy of the letter of 17 October 2003 is contained in the court book. The RRT's reasons state that on 24 October 2003, that is to say on the postponed hearing date, the applicant did not attend the hearing or contact the RRT to explain her failure to attend and in those circumstances the Tribunal decided to make its decision pursuant to s 426A of the Migration Act 1953 (Cth) without taking any further action to enable the applicant to appear. 10 In its statement of reasons the RRT observed that the principal claim made by the applicant was that she was persecuted because of her involvement in "the democratic student movement". However, the RRT stated that the applicant did not provide any indication of what role she played in the movement nor any other evidence or relevant information to support this claim. The RRT noted that the applicant's claims, that is the claims set out in her statement, raised a number of queries which were unanswered and on which the RRT did not have any further explanation because the applicant did not appear at the hearing. The RRT stated that in the absence of any evidence or further information, it did not accept the truth of the claims. 11 The RRT did not accept the truth of the claim that the applicant had led a life of poverty since the death of her husband. The RRT pointed to the inconsistency between this claim and her conduct in bringing a tour of people to Australia. 12 The RRT pointed out that even if it accepted the applicant's claim that her involvement in the student movement in 1989 had resulted in the denial of her certificate of completion of her studies that did not support a claim for a protection visa. The RRT stated that the applicant had been living in the PRC for 14 years since the events in question and that there was no further evidence of harassment or persecution. The RRT pointed to the applicant's ability to travel to Australia as a factor which suggested that the applicant was not of adverse concern to the PRC authorities. The RRT also said that the applicant did not allege, and there was no further evidence on her file, to suggest that she faced or feared persecution for any Convention reason on her return to China. 13 The applicant's grounds of review as set out in her application state that the RRT ignored parts of her claim in the written statement attached to her application for a protection visa. The application also says that in doing so the RRT ignored relevant material or reached a decision that could not have reasonably been reached, or reached a decision, without reasonable or rational foundation. This is said to have given rise to an incorrect finding and also to jurisdictional error. 14 The applicant appeared before me in person this morning. She does not appear to speak English but was assisted by a Mandarin interpreter. 15 The only submission which the applicant put to me this morning was that she did not appear before the RRT because she did not receive the letter of invitation to the hearing. She told me that her adviser did not inform her of this and that she had no idea that the hearing was cancelled or postponed. 16 As Mr Allatt for the Minister pointed out, there does not appear to be anything on the file which indicates that the applicant attempted to attend before the RRT on the original hearing date of 17 October 2003. 17 However, the short answer to the point made by the applicant is that, as I have said, the form of application for review by the RRT named Mr Meng as the applicant's authorised agent. Mr Meng's signature appears on the document as does a signature in Chinese characters which is apparently the signature of the applicant. Mr Meng, having been named as the authorised agent for the purpose of receipt of correspondence, he was authorised to correspond with the RRT on the applicant's behalf. 18 I note that the response to the hearing invitation dated 29 September 2003 was signed in Chinese characters which appear to correspond with the characters that are shown on the form of application for review as being the signature of the applicant. 19 In any event whether or not the applicant's contention that Mr Meng did not contact her is correct, there is no answer to the fact that Mr Meng was the authorised agent. It follows from this that the RRT was acting within jurisdiction when it proceeded to deal with the application under section 426A of the Act. 20 The RRT's reasons for decision indicate that it made findings of fact which were adverse to the applicant. In particular, it found that it could not accept as truthful the claims made by the applicant about her fear of persecution. It is well established that findings of fact do not give rise to a claim for jurisdictional error. The applicant put to me this morning that there are some errors of fact which appear in the RRT's reasons but this is not a ground of judicial review. Nor is there anything in the application under s 39B which I have summarised above which supports a claim for jurisdictional error. 21 It follows that the order I will make this morning is that the application be dismissed.