NBDD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 873

FEDERAL COURT OF AUSTRALIA

NBDD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 873 NBDD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N427 of 2004 JACOBSON J 1 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N427 of 2004

BETWEEN: NBDD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 1 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 N427 of 2004

BETWEEN: NBDD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 1 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review under section 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal ("the RRT") handed down on 9 March 2004. The RRT affirmed a decision of a delegate made on 18 June 2003 refusing to grant the applicant a protection visa. 2 When the matter was called on for hearing this morning there was no appearance by the applicant. I stood the matter down in the list until 10.45 am in case the applicant was unavoidably delayed. When the matter resumed there was still no appearance and it is now 11.00 am. The Minister's counsel asks me to deal with the matter under O 32 r 2(1)(d). It is appropriate to deal with the matter under that rule because, for reasons mentioned below, I am satisfied that the applicant was aware that the matter was fixed for hearing this morning. 3 On 10 May 2004, my associate wrote to the applicant notifying her that the matter was listed for hearing before me this morning at 10.15 am. Moreover, a second letter was sent to the applicant on 11 May 2004. That letter was sent on behalf of the District Registrar. Both of those letters were sent to the address stated in the application. The postal rule therefore applies. 4 There is further evidence from which I would infer that the applicant received the letter of 11 May 2004. That letter referred to a direction that the applicant file and serve an amended application by 23 June 2004. On 13 May 2004 an amended application was filed. In the circumstances I would infer that the amended application was filed in response to the letter dated 11 May 2004 and, accordingly, that the applicant was aware that the matter was listed for hearing today. 5 There is a third piece of evidence which provides further confirmation that the applicant was aware of the hearing this morning. By courier delivery dated 29 June 2004 the solicitors for the respondent forwarded to the applicant a copy of the respondent's written submissions. The written submissions state in bold at the top of the first page, "For hearing on 1 July 2004". This is yet a further piece of evidence that the applicant was aware of the hearing. 6 The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 11 June 2003. She lodged an application for a protection visa on 18 June 2003. It would appear from this that the delegate dismissed the application on the same day that it was made. However, nothing turns on this because the applicant sought review of the decision of the delegate and it is the review by the RRT which is now sought to be challenged. 7 The applicant claimed to have a well founded fear of persecution by reason of her membership of the Falun Gong. The claim was apparently put as a claim based on religion but it could equally have been dealt with as a claim made on political grounds or upon the basis of membership of a social group. 8 The applicant filed a seven paragraph statement in support of her application for a protection visa. The RRT set out the effect of that evidence when dealing with the application. The effect of it was that the applicant claimed to have been practising Falun Gong for a long period of time, having been introduced to it by friends. She claimed that she attended Falun Gong activities in her home town regularly and that she was very active and generally became one of the group leaders. 9 She claimed that after the Chinese authorities began to suppress the Falun Gong she became a target of the crackdown. She stated that she was threatened and that if she did not stop practising Falun Gong, she would be placed in a detention centre because she was the leader of the Falun Gong group in her neighbourhood. She claimed that she was accused of disturbing the social order, sabotaging the rule of the Chinese Communist Party and instigating people to act against the Chinese government. 10 The applicant claimed that it was a scary period of time and everyone who was practising Falun Gong was scared. She claimed that she was on the verge of a nervous breakdown but that she was fortunate to be able to come to Australia on a business visa. 11 The applicant claimed that she had been practising Falun Gong in Australia and that she had attended sit-ins by way of protest in front of the Chinese Embassy. She also claimed that she had helped to distribute information to people about the truth of what was happening in China. 12 The RRT set out in some detail country information which dealt with the treatment of the Falun Gong in China. As will appear later, the RRT did not rely upon the country information to make any adverse finding against the applicant. 13 On 28 November 2003 the RRT wrote to the applicant advising her that the RRT had considered the papers relating to her application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend an oral hearing on Monday, 16 February 2004. On 2 December 2003 the RRT received a response to the hearing invitation from the applicant stating that she wished to attend the hearing and give evidence. 14 However, the applicant did not attend the hearing and she did not provide any explanation for her failure to attend. Accordingly the RRT determined the application on the evidence which was available to it on the papers. Under the heading "Findings and Reasons" the RRT summarised the effect of the applicant's claim to have a well founded fear of persecution on the basis of her role as a practitioner and local leader of the Falun Gong who had been threatened with arrest and detention. 15 The RRT referred to a number of well known authorities which establish the principle that although there is no onus of proof in such applications it is for the applicant to put before the decision maker the relevant facts upon which the decision maker is to form the necessary state of satisfaction under s 65 of the Migration Act 1953 (Cth). 16 The RRT stated that it had considered the independent country information before it and noted that the applicant's claims were of a serious nature as disclosed in the country information. 17 However, the substantial reason why the RRT affirmed the decision of the delegate was that the applicant had provided very little detail in her application and although she had made assertions about her practice of and belief in the Falun Gong, the RRT stated that the information which was provided was vague and lacked detail. 18 Importantly, the RRT stated that it wished to question the applicant during the course of the hearing in order to establish the relevant facts in relation to the claimed threats of arrest and detention. 19 The RRT noted that the applicant had obtained a passport in February 2001 but that she did not leave China until 2003, that is, nearly two and a half years later. The RRT observed that, prima facie, that fact appeared to be inconsistent with the claim of being persecuted and under threat of arrest and detention. 20 The RRT also noted the fact that the applicant was able to obtain a passport in 2001 which was inconsistent with her claim to be of adverse interest to the Chinese authorities. 21 The RRT commented upon on another aspect of the applicant's departure from China, which the RRT believed to provide evidence that the applicant was not of adverse interest to the Chinese authorities at the time of her departure. 22 The RRT stated that the applicant was given notice by the RRT that it was unable to make a favourable decision on the information that was put before it, but the applicant had failed to provide any further information in support of her claims. The RRT therefore stated that a number of relevant questions were left unanswered. In those circumstances, the RRT was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution. 23 The original application which was filed by the applicant claimed that the RRT had ignored relevant material, or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation. This was said to give rise to jurisdictional error. The amended application is in even weaker terms than the original application because it merely claims that the decision of the RRT was not made on "a fair basis". It states that the RRT should have taken into account all the circumstances. 24 It is plain that the RRT considered the only material which was put before it to enable it to reach the necessary state of satisfaction. That evidence was the brief seven paragraph statement to which I have referred. There is nothing whatsoever to suggest that the RRT ignored any material that was before it or that the RRT failed to take into consideration all the circumstances which were put before it in evidence, nor is there anything to suggest any denial of procedural fairness, the applicant having been notified of the hearing and having indicated that she wished to attend, and failed to attend without giving any explanation for doing so. Nor can it be said that the decision, which the RRT reached on the brief material put before it, without any further explanation given to it by the applicant, was unreasonable or illogical within the principles which have been stated to apply to such decisions. 25 It follows that I am satisfied that the decision of the RRT was not affected by jurisdictional error. Accordingly the orders I will make are that the application be dismissed and I order the applicant to pay the respondent's costs of the proceeding. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.