NBIC v Minister for Immigration & Multicultural & Indigenous Affairs 2004 FCA 1459

FEDERAL COURT OF AUSTRALIA

NBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1459 NBIC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1052 of 2004 MADGWICK J 18 OCTOBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1052 of 2004

BETWEEN: NBIC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 18 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs assessed in the sum of $3,500. 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 N1052 of 2004

BETWEEN: NBIC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 18 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application, as it may be deduced from reading the original application to the Court and the amended application together, which seeks judicial review of an adverse decision of the Refugee Review Tribunal ('the Tribunal') constituted by Ms Kim Rosser, given on the 24 May 2004. The applicant is apparently a national of the People's Republic of China who came to Australia on the 17 January 2004 and five days later lodged an application for a protection visa. A delegate of the respondent Minister refused the application on 13 February 2004 and the applicant duly applied to the Tribunal for review of that decision. 2 The applicant claims that she was a self employed taxi driver in China with a good business but that she was oppressed and corruptly dealt with by various official organisations and persons and that she left China to be free of this persecution. 3 The Tribunal member comprehensively disbelieved the applicant who gave evidence to the Tribunal. The Tribunal member gave a number of reasons for this disbelief and those reasons appear to have been open to the Tribunal. In relation to such of her evidence as was believed, the Tribunal member said: 'Overall I am of the view that whatever problems the applicant had with the traffic authority were minor in nature. As the applicant continued to work until shortly before she left China, I do not accept that any disputes she had with the traffic authority impeded her ability to earn a living as a taxi driver. I am not satisfied that the applicant suffered serious harm in the past arising out of any conflict with the local traffic authority or any individuals within that authority. As I am not satisfied that the applicant suffered serious harm in the past for this reason, I am of the view that the chance that she would suffer serious harm in the future for this reason is remote. It follows that I am not satisfied that the applicant has a well-founded fear of persecution.' 4 Finally, the Tribunal member, for reasons given, took the view that any harm the applicant fears in China is not for any of the reasons enumerated in the Refugees Convention as amended by the Refugees Protocol. 5 By amended application, the applicant, who is self-represented, complains that: 'I believe that the decision made by [the] Refugee Review Tribunal ... is unfair.' 6 She asserts her genuineness; she says she needs a chance to stay in Australia for freedom. In addition, she says her husband is an Australian citizen by birth and he would experience hardship and difficulties if she were to return to China. She claims that the decision is unfair because she is sure that if she returns to China she will be persecuted by the Government. She says of the Tribunal: 'They should take all the circumstances into consideration and give me a favourable decision.' 7 She secondly claims: 'The Tribunal only considered the chance of being persecuted at the time of the decision made by the delegate of the Minister. The Tribunal has failed to [assess] the situation in which I am at the present should I be forced to return to my home country.' 8 In the original application there is a complaint that the Tribunal: '... did not draw a clear line of demarcation as what fits in the definition of UN Convention for Refugees and what does not ...'; and: 'I was not given enough time to fully comment on the information and claims I submitted to the Immigration Department. There is a procedural error and