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MIGRATION - RRT decision on refugee visa - MRT bridging visa decision - no grounds for judicial review of either.

NBIP v Minister for Immigration [2004] FMCA 774 (29 October 2004)

NBIP v Minister for Immigration [2004] FMCA 774 (29 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBIP v MINISTER FOR IMMIGRATION
[2004] FMCA 774




MIGRATION - RRT decision on refugee visa - MRT bridging visa decision - no grounds for judicial review of either.




Migration Act 1958 (Cth), ss.474, 483A

Migration Regulations 1994 (Cth), Sch.2 cl.050.212

Applicant:
NBIP




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2716 of 2004




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


29 October 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


Applicant in person




Counsel for the Respondent:


Ms R A Pepper




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Objection to competency upheld.

(2) Application dismissed.

(3) Applicant to pay respondent's costs in the sum of $4500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2716 of 2004

NBIP



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth), which challenges a decision of the Refugee Review Tribunal ("the RRT") handed down on 4 August 1999. The RRT affirmed the refusal of an application for a protection visa lodged in February 1996. The application which commenced the present proceeding was filed in the Federal Court on 11 August 2004, and was transferred to this Court by order of Branson J on 26 August 2004.

2. During the intervening years, the applicant took various steps to challenge the RRT's decision and also had periods where he was illegally in Australia and not at addresses known to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). His application to the Federal Court was filed after he was taken into immigration detention on 14 July 2004.

3. While in detention and before commencing judicial review proceedings, the applicant applied for a bridging visa on the ground that he "is making, or is the subject of, acceptable arrangements to depart Australia" within Sch.2 cl.050.212(2) of the Migration Regulations 1994 (Cth).

4. A decision refusing the bridging visa was reviewed by the Migration Review Tribunal ("the MRT") and was affirmed on 30 July 2004 on the ground that the MRT was not satisfied that the applicant, indeed, did intend to leave Australia. The decision of the MRT is also identified in the applicant's application to the Court as a decision which he wishes to challenge. No ground for judicial review is identified.

5. I shall deal with it first and briefly. I have read the material that was before the MRT and its decision which sets out fully the background of the matter. Plainly there were many grounds on which it was open to the MRT to decide that the applicant did not really intend to leave Australia. I can identify no error of law in the MRT's decision.

6. The applicant's submissions to me in writing and orally were directed at the RRT decision, and in relation to the MRT decision, his only submission was that it "lacked credibility". I take this to be an indication only that he disagreed with the factual conclusion of the Tribunal. However, that does not provide a reviewable ground for this court to intervene. On the material before me, the challenge to the MRT decision is without substance. I should note that I have pointed out to the applicant that it may be open to him to apply for further bridging visas on different grounds, but this is a matter on which he needs to take his own advice and on which I cannot give him advice myself.

7. Turning to the 1999 RRT decision, the applicant's claims made in the material that was before the Tribunal and in a hearing which he attended is, so far as I can assess on what is before me, fully and sufficiently recounted by the Tribunal. The Tribunal sets it out at too great a length for me to reproduce in these reasons.

8. Briefly, the applicant arrived in Australia in December 1994, having had 19 years of education including a Masters Degree and training in journalism. He claimed that he had worked at various times for four different magazines and newspapers which he identified. He stated in his application that he feared being arrested and probably killed by the Indonesian government especially the "Suharto Group" and by the approved journalists' union, the PWI, because:

I was invited by this government to make a report but, I can see in Indonesia I was blacklisted because I was involved in the conflict of the banned Tempo, DeTik. I was the member of Aliansi Journalist Indonesia (AJI). I've heard most of my friends were detained. Last time I got stabbed and assaulted. That's why I am totally scared to return to Indonesia.

These claims were elaborated in further written material and in evidence given to the Tribunal.

9. In the Tribunal's findings, after looking at background information concerning the closure of outspoken magazines such as Tempo and DeTik in 1994, and noting changes in government and conditions in Indonesia since then, the Tribunal concluded:

Thus, on the independent evidence on current conditions in Indonesia and the changes brought about by the new Government, I do not consider that the applicant has a well-founded fear of persecution for being a member of the AJI, for having attended AJI meetings in 1994 in protest against the banning of DeTik etc. or for his claimed, yet unpublished, article on Tommy Suharto. While I acknowledge that reporting restrictions might remain on some matters, I do not consider, on the independent evidence quoted above, that journalists in general work in an atmosphere of persecution in Indonesia.

10. The Tribunal then addressed whether there was some factor in the applicant's particular circumstances that might cause him to be persecuted on return to Indonesia. In the course of this, it drew a conclusion that:

The applicant's claims of being wanted and of being on a blacklist lack credibility. Given this, I find his claim of having to go into hiding in Victoria to escape Indonesian agents to be fanciful, and I do not accept it.

11. The Tribunal then also addressed claims that the applicant had raised at the end of the hearing before the Tribunal that he was reluctant to return to Indonesia because he would find trouble as an ethnic Chinese, and that as a Christian he felt stressed by random attacks on churches in Indonesia. In both of those respects, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Indonesia.

12. I have considered the whole of the Tribunal's reasons carefully and have been unable to identify any arguable error of law in its reasoning on the material it had before it.

13. The applicant has placed before the Court in bundles of papers and attachments to an amended application, innumerable and disjointed arguments concerning his case. In the hearing before me today, with the assistance of an interpreter, he read from a further document on which he had written down his further thoughts. Unfortunately, these were discursive but generally impossible to follow, and I think the applicant has great trouble organising his thoughts into clear submissions. It would not be helpful for me to reproduce these or to attempt to paraphrase them, but they are with the papers on the file.

14. Although the applicant's submissions contained a general assertion that the Tribunal misinterpreted or misapplied the law, he was not able to identify any point at which this may have happened nor to explain why he made that submission.

15. The bulk of the applicant's material was presented in an effort to contradict findings of fact by the Tribunal, and to provide further supportive arguments and factual material to support the claims which the Tribunal ruled on. However, as has been explained to him in the course of today's hearing, the Court cannot perform the task of looking at his claims for refugee status afresh.

16. Another theme in the material presented was a humanitarian case, which the applicant wanted considered, concerning the support he is giving to his mother in Australia who was granted resident status in 1989. Included in the material were medical reports concerning her health, and a confused but groundless suggestion that the applicant may have been included in the grant of resident status given to her. Unfortunately, none of that part of his submissions is relevant to what I have to decide. Whether he has grounds for persuading the Department or the Minister to grant residence based on humanitarian considerations is not a matter which I can address or comment upon. The applicant has been misadvised if he thought otherwise, and the people that are helping him should address this material to the Minister or his Department or to other helpers of migration applicants.

17. On all the material and arguments that have been presented to me, I am not satisfied that either of the decisions challenged were affected by jurisdictional error. Both decisions are, therefore, privative clause decisions within s.474(1) of the Migration Act, and I uphold the respondent's notice of objection to competency based on that provision.

18. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

19. I shall order that the applicant pay the respondent's costs in the sum of $4500.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 11 November 2004
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