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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for a convention reason - applicant's claims found to be of humanitarian origin and not convention related.

NAAZ v Minister for Immigration [2003] FMCA 202 (15 May 2003)

NAAZ v Minister for Immigration [2003] FMCA 202 (15 May 2003)
Last Updated: 30 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAZ v MINISTER FOR IMMIGRATION
[2003] FMCA 202



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for a convention reason - applicant's claims found to be of humanitarian origin and not convention related.



Applicant:
NAAZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1209 of 2002



Delivered on:


15 May 2003



Delivered at:


Sydney



Hearing date:


15 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self-Represented



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $3,600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1209 of 2002

NAAZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a national of the People's Republic of China. She has made a number of trips to Australia but for the last time arrived in Australia on 20 November 2001. On 22 November 2001 she lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 7 February 2002 a delegate for the Minister declined to grant her such a visa. The applicant sought a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal on

1 August 2002. The Tribunal made its decision on 12 August and handed down that decision on 3 December 2002.

2. The applicant's claim of a well-founded fear of persecution for Convention reasons arose out of her membership of a secret church in China which was opposed, amongst other things, to China's one child policy. She claims to have been taken to that church first in August 2001. She attended with a friend and advised the Tribunal that she obtained from the church social and psychological support.

3. The applicant was unable to name the specific church or say anything about it, such as what distinguished it in teaching or behaviour from other accepted churches. The applicant only attended a few gatherings before coming to Australia. The Tribunal stated:

"In her evidence, she was linked by happenstance to the church, albeit very slightly, in view of a scarce occasions of contact, rather than any sense of dedication to it."

4. The applicant made a claim that the church had been raided and closed by authorities and the leaders arrested. She was not present on that day. In response to questions from the Tribunal, she then said that a raid had occurred on the home of a member and the authorities had found lists, one of which had her name upon it. She also stated to the Tribunal that persons who had been arrested as a result of either of these raids had been released. She claimed that if she was arrested she would deny all knowledge of the church teachings and just say she let herself be taken along because she was depressed.

5. The Tribunal noted that the applicant provided no evidence of further involvement in Christian communities or teachings since coming to Australia.

6. Before both the Tribunal and this court, it became evident that the real reason why this applicant wishes to remain in Australia is because her son was allowed to leave China to join his father in this country. The father had divorced her and she had become separated from her son. She wished to remain in Australia in order to remain with her son.

7. The applicant refused assistance under the Minister's scheme, although she had been represented by a migration agent before the Tribunal. She did not comply with the orders for directions made by the court. Her application is really based upon the Tribunal's non-belief of her claims. The affidavit which she did file is in the same vein. As such, it constitutes an attack upon the Tribunal's findings of fact. This is not a ground for review.

8. The transcript will reveal that before me the applicant had nothing to say in support of her application. She was, understandably, more concerned about the length of time she could remain in the country so that she could remain with her son. As the Tribunal itself recognised, this is a humanitarian claim which the applicant is entitled to make to the Minister. In its findings the Tribunal said:

"The applicant's humanitarian claims may be directed to the Minister, who may or may not exercise his non-binding powers to consider them. Though they appear to be strong and heart-felt, they are not Convention related and therefore cannot found a decision by the Tribunal, and may in any event be part of a bigger family story."

9. The applicant has not raised and I have not been able to find any indication of jurisdictional error in the conclusions of the Tribunal. There was evidence upon which the Tribunal could come to its findings of fact. In the circumstances I must dismiss this application. I do so.

I order that the applicant pay the respondent's costs which I assess in the sum of $3,600 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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