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2 The appellant, a citizen of the People’s Republic of China, arrived in Australia on 8 January 2003. On 22 January 2003, he lodged an application for a Protection (Class XA) visa. On 18 February 2003, a delegate of the respondent (the "Minister") declined the application and on 14 March 2003, the appellant applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. The Tribunal affirmed the decision on 31 December 2003. On 19 February 2004, the appellant applied, pursuant to s 39B of the Judiciary Act 1903 (Cth), for the issue of writs of certiorari and mandamus directed to the Tribunal. On 9 April 2004, the appellant filed an amended application for such writs, the grounds being:

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

NBBV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 291 (11 November 2004)
Last Updated: 12 November 2004

FEDERAL COURT OF AUSTRALIA


NBBV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 291


































NBBV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1071 OF 2004



FRENCH, EMMETT & DOWSETT JJ
11 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1071 OF 2004


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


BETWEEN: NBBV
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: FRENCH, EMMETT & DOWSETT JJ
DATE OF ORDER: 10 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 1071 OF 2004


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


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


JUDGES: FRENCH, EMMETT & DOWSETT JJ
DATE: 11 NOVEMBER 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

1 After hearing the appellant we dismissed his appeal, ordering him to pay the respondent’s costs. We said that we would subsequently publish our reasons for so ordering. We now do so.

INTRODUCTION

2 The appellant, a citizen of the People’s Republic of China, arrived in Australia on 8 January 2003. On 22 January 2003, he lodged an application for a Protection (Class XA) visa. On 18 February 2003, a delegate of the respondent (the "Minister") declined the application and on 14 March 2003, the appellant applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. The Tribunal affirmed the decision on 31 December 2003. On 19 February 2004, the appellant applied, pursuant to s 39B of the Judiciary Act 1903 (Cth), for the issue of writs of certiorari and mandamus directed to the Tribunal. On 9 April 2004, the appellant filed an amended application for such writs, the grounds being:

‘(1) The RRT constructively failed to exercise its jurisdiction.
Particulars
(a) The RRT failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was facing a real chance of persecution upon return to his home country as he claimed at the hearing held by the Tribunal.
(b) The RRT improperly precluded itself from considering the material, which supported the applicant’s claim that he has assisted other Catholic practitioners.
(2) The RRT’s satisfaction was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.’

3 On 18 June 2004, Branson J dismissed the application, ordering the appellant to pay the respondent’s costs. On 7 July 2004, the appellant appealed from that decision, which appeal is the subject of the present hearing. The grounds of appeal identified in the notice of appeal are as follows:

‘(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.’

4 It is not clear whether these grounds were meant to relate to the decision of Branson J or to the decision of the Tribunal. In any event, they are so lacking in particularity as to be incapable of further consideration.

THE APPELLANT’S CASE

5 The case as it was presented to the Tribunal can be readily summarized. The appellant holds a Diploma in Clinical Medicine and was employed as a physician from 1991 to 1996, and from May 1996 until he came to Australia, at an emergency centre in Shenyang. He had been a political activist at university and claimed to have continued to be active thereafter, taking stands which were unpopular with the Chinese government and supporting various dissident causes. He also criticized the harsh treatment of Falun Gong adherents. He claimed to have suffered various acts of discrimination and persecution as a result of his public activism.

6 The Tribunal concluded that there were discrepancies in his evidence and that his claims had ‘...taken on additional aspects as time passes, and his evidence was marked by embellishment and overstatement.’ It was therefore cautious about accepting all of his claims at face value. It considered those claims in some detail and concluded as follows:

‘Although the Applicant has had some past difficulties in clashes with the authorities, the Tribunal does not accept that these are ongoing and is satisfied that at the time he left China (and subsequently) the Applicant was of no significant adverse interest to the Chinese authorities and does not face a real chance of persecution for a Convention reason on return to China.’

7 We have previously set out the grounds of review raised in the amended application. Her Honour observed of those grounds:

‘The amended application does not fully particularise the applicant’s application to the Court. The grounds of the application continue to show little, if any, relationship to the decision and reasons of the Tribunal. Although the applicant has today suggested otherwise, it appears to me that they were probably copied from another person’s application. They refer to a claim not made by the applicant; indeed, a claim that is inconsistent with the applicant’s case. The applicant did not file an affidavit in compliance with [an earlier order made by Lindgren J].’

8 We agree. Her Honour then continued:

‘Today the applicant has raised matters with me which go to the merits of his claim to be entitled to a protection visa. In particular, he has indicated that he hopes to obtain from China documentation that would show that the Tribunal ought not to have disbelieved some of his claims. As I have explained to the applicant, the possibility that the applicant might now be able to obtain further material in support of his claims is not a matter to which I can have regard in reviewing the decision of the Tribunal.

As the applicant does not have legal representation, I have given careful consideration to the decision and reasons for decision of the Tribunal. The reasons for the decision of the Tribunal disclosed that the Tribunal member gave careful and measured consideration to the claims of the applicant. The Tribunal accepted that he is a citizen of the People’s Republic of China. However it concluded, after careful consideration of the claims of the applicant, that his evidence was unsatisfactory in a number of respects.

It found that his evidence was marked by embellishment and overstatement. The conclusion of the Tribunal was that although the applicant has had some past difficulties and clashes with the Chinese authorities they are not ongoing. The Tribunal found that when the applicant left China, and thereafter, he was of no significant interest to the Chinese authorities. It found that he would not face a real chance of persecution for Convention reasons if he were to return to China.

On that basis the Tribunal concluded that the applicant is not a person to whom Australia owes protection obligations. I am not satisfied that the reasons of the Tribunal disclosed reviewable error of any kind.’

9 We have also considered the Tribunal’s reasons and agree with her Honour’s observations. The grounds of review in the amended application offered no basis for concluding that the Tribunal’s decision was attended by jurisdictional error. The grounds of appeal from her Honour’s decision similarly offer no basis for intervention.

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

• that he still holds the views which have previously led to his activism and persecution;
• that he meets the requirements for recognition as a refugee by the United States of America; and
• that he believes that he satisfies the requirements prescribed by the United Nations Organization for such recognition.

11 Obviously, none of these matters raises any basis for intervention by this Court.

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




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



Associate:

Dated: 11 November 2004



Counsel for the Appellant: The Appellant appeared in person



Counsel for the Respondent: Ms K Morgan



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 10 November 2004



Date of Judgment: 11 November 2004
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