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1 Following the hearing of this appeal, the Court dismissed it, ordering the appellant to pay the respondent’s costs thereof. We indicated that we would publish our reasons at a later date. We now do so.

2 The appellant is a Chinese national. He was born on 16 August 1963, is married and has a child. He entered Australia on 6 July 2002, holding a temporary business visa. The claimed purpose of his visit was to conduct business feasibility studies. On 17 July 2002, he applied for a Protection (Class XA) visa. On 13 August 2002 a delegate of the respondent (the "Minister") refused that application and on 19 August 2002 the appellant applied to the Refugee Review Tribunal for review of that decision. On 25 July 2003 that application was dismissed. The appellant then applied to this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal’s decision. On 30 March 2004 Allsop J dismissed that application. This is an appeal from that decision.

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 (10 November 2004)
Last Updated: 12 November 2004

FEDERAL COURT OF AUSTRALIA


NAVX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 287































NAVX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 567 OF 2004




FRENCH, EMMETT & DOWSETT JJ
10 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 567 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAVX
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: FRENCH, EMMETT & DOWSETT JJ
DATE OF ORDER: 9 NOVEMBER 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.













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 N 567 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAVX
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: FRENCH, EMMETT & DOWSETT JJ
DATE: 10 NOVEMBER 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

THE COURT:

1 Following the hearing of this appeal, the Court dismissed it, ordering the appellant to pay the respondent’s costs thereof. We indicated that we would publish our reasons at a later date. We now do so.

2 The appellant is a Chinese national. He was born on 16 August 1963, is married and has a child. He entered Australia on 6 July 2002, holding a temporary business visa. The claimed purpose of his visit was to conduct business feasibility studies. On 17 July 2002, he applied for a Protection (Class XA) visa. On 13 August 2002 a delegate of the respondent (the "Minister") refused that application and on 19 August 2002 the appellant applied to the Refugee Review Tribunal for review of that decision. On 25 July 2003 that application was dismissed. The appellant then applied to this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal’s decision. On 30 March 2004 Allsop J dismissed that application. This is an appeal from that decision.

3 In support of his application for a protection visa, the appellant provided a statement of his reasons for fearing persecution. It was relatively short and quite vague. On 12 June 2003 the Tribunal advised him that it had considered his application but was unable to make a favourable decision upon the material then in its possession. It invited the appellant to give oral evidence and present argument at a hearing to be held on 25 July 2003. On 19 June 2003 the appellant advised the Tribunal that he did not wish to give oral evidence and that he consented to the Tribunal deciding his application without hearing him further. The Tribunal then determined the matter on the limited information which had been provided. It accurately summarized that information as follows:

‘According to information provided in the protection visa application, completed with the assistance of a registered migration agent, the Applicant is a married man from Shenyang (Liaoning province); his wife and child live in China. The Applicant lived at the one address in Shenyang for at least the ten years before he came to Australia. He described his occupation in China as a manager. He was employed as a section manager at a district council until August 1995 and from October 1995 to July 2001 he worked as a finance manager for a Shenyang corporation. The Applicant obtained a passport without difficulty in January 2002. He left China legally about five months later and came to Australia on a temporary business visa.

In an accompanying statement the Applicant claimed that he is a Falun Gong (aka Falun Dafa) practitioner and that he joined Falun Gong in July 1998. "He used to join hands with students from Liaoning University near his residential area and laughed a ten-thousand people demonstration of Falun Dafa in October 1998...". Since then he has been an organiser of the Huanggu District Falun Dafa station.

The Applicant and other [sic] two other practitioners he named went to Beijing in April 1999 to petition the Chinese government at the Zhongnanhai. The Applicant was arrested and kept at a detention centre for three days. The Applicant was later sent back to Shenyang City and detained for another week. The Applicant experienced physical torture and mental harassment, and suffered malnutrition, diarrhoea and pneumonia. He was forced to write a letter of repentance and released from detention after being fined $3000. The Applicant was dismissed from his job without compensation. The Applicant borrowed money which he used as a bribe to get his job back. He was made to promise never to practise Falun Gong again.

The Applicant kept practising Falun Gong in private. This continued for almost two years until the Applicant and two friends (one of whom was named above) were reported to the local police by the local neighbourhood committee; the Applicant and his friends were caught practising Falun Gong privately. The Applicant was taken to the local police station and interrogated. He was threatened and fined again after promising not to practise Falun Gong again even in private. Again the Applicant lost his job but this time he was not able to afford to buy it back. The Applicant claimed that he lost his employment due to his practice of Falun Gong and he also lost his freedom of speech and freedom of belief.’

4 The following passage discloses the Tribunal’s reasons for rejecting the appellant’s claim:

‘However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant’s claims unclear as well as very vague, and inconsistent with independent country information included in the delegate’s decision. For example, his statement about a ten thousand person demonstration in October 1998 does not make sense. More importantly, there is no useful detail at all about his Falun Gong activities, about the visit to Beijing and the claimed resulting detention and mistreatment, or about his later detention, presumably sometime in early 2001. The Applicant’s claim to have been detained for practising Falun Gong privately is at odds with the independent country information about the ability of persons to do so and the Tribunal does not have the opportunity to test the claim. The Applicant claimed to have lost his job after being detained in early 2001 yet information in the protection visa application form is that he was employed until July 2001. Despite the Applicant’s claims of detention he obtained a passport without any difficulty in January 2002 and left China legally some months later. These factors do not suggest that he was of adverse interest to the authorities. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.’

5 In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

6 In his application for review of the Tribunal’s decision, the appellant identified the following grounds:

‘1. The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, the RRT ignored parts of the applicant’s claims in the statement attached to his application for the relevant visa submitted. In doing so, the RRT ignored relevant material or reached the decision that could not reasonably have been reached, or reached the decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to a protection visa and give rise to jurisdictional error.
2. The above jurisdictional error affected the exercise of power of the RRT.’

7 This application came on before Allsop J at first instance. His Honour recorded that the appellant raised various factual matters which should have been put before the Tribunal. His Honour noted that it was not his function to consider the merits of the case. In those circumstances, and in the absence of any arguable ground demonstrating jurisdictional error, the application was dismissed.

8 The appellant’s present notice of appeal raises the following grounds:

‘(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.
(2) The decision involves errors of law.’

9 It is not clear whether these grounds relate to the proceedings before Allsop J or to proceedings in the Tribunal. In either case they are so lacking in particularity that it is impossible to consider them further.

10 Before us, the appellant made the following additional submissions:

• that the Tribunal did not deal with his case according to the Convention or carefully;
• that the Tribunal treated his case as stereotypical and its dismissal as a mere formality;
• that the original application contained adequate details of the claim;
• that he fears persecution in China for reason of his membership of Falun Gong;
• that it will be more dangerous for him in China after his time in Australia than it was before he came here;
• that he will be arrested and will have to give up his religion;
• that the police frequently came to his house;
• that his wife has lost her job;
• that his son will not receive a normal education;
• that he, his wife and son live in fear; and
• that the Tribunal rejected his application because he entered Australia on a valid passport.

11 The last-mentioned matter merely reflects the Tribunal’s observation that the appellant had been granted a passport and allowed to leave China. All of these matters go to the merits of the claim. None of them could conceivably offer a proper basis for intervening to set aside the Tribunal’s decision.

12 For these reasons, we dismissed the appeal, ordering the appellant to pay the respondent’s costs.


I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Emmett and Dowsett.



Associate:

Dated: 10 November 2004



Counsel for the Appellant: The Appellant appeared in person



Counsel for the Respondent: Mr T Reilly



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 9 November 2004



Date of Judgment: 10 November 2004
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