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MIGRATION - Review of decision of Refugee Review Tribunal - no appearance by applicant before delegate or Tribunal - applicant allegedly member of Falun Gong - no claim of lack of bona fides or breach of inviolable precondition.

NATE v Minister for Immigration [2003] FMCA 19 (29 January 2003)

NATE v Minister for Immigration [2003] FMCA 19 (29 January 2003)
Last Updated: 3 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATE v MINISTER FOR IMMIGRATION
[2003] FMCA 19



MIGRATION - Review of decision of Refugee Review Tribunal - no appearance by applicant before delegate or Tribunal - applicant allegedly member of Falun Gong - no claim of lack of bona fides or breach of inviolable precondition.



Migration Act 1958 (Cth), s.474

NAAV v Minister for Immigration (2002) FCAFC 228

Zahid v Minister for Immigration (2002) FCA 1108

NABN v Minister for Immigration (2002) FCAFC 294

NAAQ v Minister for Immigration (2002) FCAFC 300

Applicant:
NATE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 928 of 2002



Delivered on:


29 January 2003



Delivered at:


Sydney



Hearing date:


29 January 2003



Judgment of:


Raphael ACFM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr M Wigney



Solicitor for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 928 of 2003

NATE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of the Peoples Republic of China. He arrived in Australia on 16 October 2001. On 24 October 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 20 November 2001, a delegate of the minister refused to grant a protection visa, and on 17 December 2001 the applicant applied for a review of that decision. The Refugee Review Tribunal wrote to the applicant on 20 June 2002 offering him an opportunity to appear before it on 6 August 2002.

2. On 31 May 2002 the Tribunal wrote to the applicant providing him with a copy of some additional information made available to it by the secretary of the department. The Tribunal advised the applicant that this matter would be given consideration at the hearing. The applicant who was represented by a migration agent did not appear at the hearing. Similarly the applicant had not attended a meeting with the delegate of the minister.

3. The applicant claims a well founded fear of persecution for convention reasons arising out of his and his wife's membership of the Falun Gong organisation in China. The applicant produced documents which purported to indicate that he had been a member of Falun Gong for approximately three years prior to his arrival in Australia.

4. The tribunal came to the conclusion that it should affirm the decision of the delegate. It did this for three reasons:

a) The applicant's failure to comment on the country information and the department's submissions which had been sent to him and his unwillingness to attend a departmental interview and the tribunal hearing "raised questions about the genuineness of the applicant's claimed subjective fear and his good faith in pursuing his application".

b) The Tribunal did not accept that the membership cards or the certificates which the applicant and his wife had furnished to the tribunal as evidence of their membership of Falun Gong were genuine. The tribunal found that they had been fabricated to falsely suggest that the applicant was a member of Falun Gong some three years prior to his departure from China.

c) The Tribunal was satisfied, in any event, that an ordinary Falun Gong practitioner in China can pursue his or her beliefs through private physical and spiritual exercise without attracting the adverse attention of the authorities.

5. The application which the applicant made to the Federal Court contained two details of claim. The first detail asserted that the Tribunal had ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation.

6. The second alleged that the finding of the Tribunal that any prospect of adverse attention from the authorities on the basis of his Falun Gong activity was remote was vitiated by jurisdictional error. The decision of the Tribunal was based upon the evidence which was before it in the form of country information. The Tribunal clearly indicated in its reasons those areas of country information which it accepted. The Tribunal was, of course, unable to debate any of these issues with the applicant.

7. It does not seem to me that any jurisdictional error has occurred in this case. I believe the Tribunal appropriately considered all the information that had been provided by the applicant or his advisers before making its findings about his association with Falun Dafa. Whilst the Tribunal may not have placed great weight upon the applicant's claims in the statement attached to his application this is not to say that those claims were ignored.

8. As the law currently stands the type of jurisdictional error alleged by the applicant is protected from review by s.474 of the Migration Act 1958 (Cth). (See NAAV v Minister for Immigration (2002) FCAFC 228; Zahid v Minister for Immigration (2002) FCA 1108; NABN v Minister for Immigration (2002) FCAFC 294 and NAAQ v Minister for Immigration (2002) FCAFC 300).

9. The applicant has not alleged any lack of bona fides on the part of the Tribunal, neither has he made an allegation of a breach of an inviolable precondition. In the circumstances there is no failure of the Tribunal which I am able to review. When he appeared before me, the applicant asked that the authorities make a thorough investigation and make a report and show him the report. This request is not consistent with an application for judicial review which is intended to point up error in the manner in which the Tribunal conducted itself.

10. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court rules.


I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael ACFM

Associate:

Date:
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