NBHX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1193

FEDERAL COURT OF AUSTRALIA

NBHX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1193 NBHX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N993 of 2004 MADGWICK J 25 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N993 of 2004

BETWEEN: NBHX

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 25 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, assessed in the sum of $4,000. 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 N993 of 2004

BETWEEN: NBHX

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 25 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') given on 3 June 2004. The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. 2 The applicant is a Chinese national. He claimed that he and his family have been persecuted since the birth of his second child and that, upon the birth of his third child, he was forced to undergo sterilisation. 3 The Tribunal invited the applicant to attend a hearing to give evidence and to make submissions in support of his application, telling him in the usual and requisite way that the Tribunal did not feel able to decide the case in his favour on the materials before it. The applicant declined the invitation to attend the hearing. 4 The Tribunal Member concisely rejected the application for review. She said that she could not find that the events the applicant had referred to in his protection visa application actually occurred. She gave as reasons firstly that, although the applicant claimed that he and his wife were persecuted, the only detail given was that his second child was discriminated against in relation to household registration and access to low cost public education. Secondly, the applicant's claims were said to be illogical and internally contradictory: the applicant had claimed that his wife had been forcefully sterilised following the birth of their second child, but then referred to a procedure to remove a contraceptive device which would not have been required had his wife actually been sterilised; further, the applicant claimed that he was forced to undergo sterilisation but had also claimed that he left China in order to avoid being sterilised. Thirdly, there was no explanation as to how it came about that he was not forcibly sterilised before he left China. Finally, there was no information to enable the Tribunal Member to conclude that any harm feared was for any of the Convention reasons. 5 In his application to the Court, the applicant said: '…the Tribunal ignored part of my claims which would otherwise [make] the finding from the Tribunal different from what it is now', and: 'The failure to recognise and deal with part of my claims by the Tribunal [means] the Tribunal failed to provide me with a procedural fairness and natural justice.' 6 The applicant appeared in person, assisted by an able interpreter, and was unable to say a word in support of his application. 7 I cannot see that the Tribunal Member ignored any part of his claim or failed to recognise or to deal with the substance of any of it. I see no sign of lack of procedural fairness or any other jurisdictional error. 8 It follows that the applicant's claim to the Court must be dismissed. The applicant is to pay the respondent's costs assessed in the sum of $4,000. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.