NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 766

FEDERAL COURT OF AUSTRALIA

NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 766 NBKG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1980 OF 2004 MOORE J 9 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1980 OF 2004

BETWEEN: NBKG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 9 JUNE 2005

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 NSD 1980 OF 2004

BETWEEN: NBKG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 9 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 26 November 2004. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant the applicant a protection visa. In the application for the protection visa the applicant explained that his fear of persecution was founded on his dealings with a local government official who had solicited a bribe from him to facilitate the implementation of a development project. In that written statement the applicant recorded that he had been the general manager of a company called the Shanhaitian Real Estate Company. 2 In its reasons for decision the Tribunal recounted the basis upon which the applicant stated at the hearing that he had a well-founded fear of persecution. The clear import of the account he gave the Tribunal was that he was at risk of harm because the vice manager of the company for which he worked had reported him to the Public Security Bureau and had provided the Public Security Bureau with false material. 3 In its reasons for decision, the Tribunal recorded that it drew to the attention of the applicant the discrepancy between the account in the original application for the visa and the account given to the Tribunal. The Tribunal also recorded that it asked the applicant's adviser if the adviser wished to make any comments. The Tribunal was informed that the adviser did not wish to make any comments. 4 The Tribunal also recorded in its reasons for decision that the account about the complaint made to the Public Security Bureau and the claim that the Bureau was investigating him did not appear to be linked to any Convention reason. Having drawn that to the attention of the applicant, and I infer in the presence of the applicant's adviser, the Tribunal indicated the applicant had a week to make further submissions. There is nothing in the material to suggest that the applicant responded to that invitation or took advantage of that opportunity. 5 The decision of the Tribunal was based on, essentially, two grounds. The first appears to be that the Tribunal entertained some real doubt about the applicant's account. Secondly and more importantly, the applicant had not identified any fear of persecution linked to any Convention ground, namely race, religion, nationality, membership of a particular social group, or political opinion. 6 In an amended application filed in Court this morning the only ground particularised as evidencing jurisdictional error on the part of the Tribunal was that the Tribunal "failed to consider the applicant's claim that he feared persecution for his membership of a social group of business persons who do not wish to co-operate with the corrupt demands of government officers". It is true that the Tribunal did not consider the applicant's claims on that basis. In my opinion, however, the case finally advanced by the applicant in support of his claims did not fairly raise that as an issue to be considered by the Tribunal. 7 In his application made to the Tribunal the applicant made the following reference: Although my case is only related to particular members of group, it still has strong connection with the authority. In context however, that does not raise any issue about the membership of a social group of the type identified by the applicant in the amended application filed today. In addition, as already noted, the factual case presented by the applicant to the Tribunal did not raise what is now said to be membership of the identified social group. 8 The applicant has not demonstrated jurisdictional error. Accordingly, I dismiss the application and order that the applicant pay the respondent's costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.