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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - no reviewable error found.

NAPU v Minister for Immigration [2002] FMCA 268 (4 November 2002)

NAPU v Minister for Immigration [2002] FMCA 268 (4 November 2002)
Last Updated: 8 November 2002


[2002] FMCA 268

MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - no reviewable error found.

Migration Act 1958 (Cth), s.474

Abebe v Commonwealth (1999) 197 CLR 510

Applicant A v Minister for Immigration (1996-1997) 190 CLR 225

Minister for Immigration v Kord (2002) 67 ALD 28

NAAV v Minister for Immigration [2002] FCAFC 228

Prahastono v Minister for Immigration (1997) 77 FCR 260

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598

Ram v Minister for Immigration (1995) 57 FCR 565




File No:

SZ885 of 2002

Delivered on:

4 November 2002

Delivered at:


Hearing Date:

4 November 2002

Judgment of:

Driver FM


The applicant appeared in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Clayton Utz


(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $4,500.




SZ885 of 2002








1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 1 July 2002. The background relating to the application is set out at paragraphs 1 to 4 of written submissions prepared on behalf of the respondent Minister. I adopt as accurate that statement of background facts and circumstances as follows:

On 1 July 2002 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

The applicant applied for the visa on 26 March 2002. The applicant was interviewed by a delegate of the respondent on 18 April 2002. The delegate's decision refusing the visa was made on 9 May 2002. The applicant applied to the RRT for review on 14 May 2002. The RRT held a hearing on 21 June 2002.

The applicant claimed to fear persecution in China for reason of his political opinion. He claimed to have worked for the People's Daily newspaper, but to have been disciplined for participating in the Tiananmen Square protests in 1989. He claimed to have resigned from the People's Daily in 1993, but to have encountered difficulty in his subsequent business dealings because of official corruption. He also claimed to have become known to the Chinese authorities in Australia, and to fear persecution for that reason.

The RRT accepted that the applicant had worked for the People's Daily until 1993, and was present at the Tiananmen Square protests in 1989. However the RRT was satisfied, on the basis of the applicant's own evidence, that he was not perceived to be a threat to the Communist Party, and that the disciplining that he had encountered at the People's Daily was insufficiently serious to amount to persecution. Further, the RRT was satisfied, also on the basis of the applicant's own evidence, that he did not thereafter encounter problems that were connected to his political views at all, as opposed to general corruption amongst officialdom in China. The RRT was not satisfied that any restraints that the applicant suffered on his expression of political opinion in China in the past was serious enough to constitute persecution, given the RRT's findings that he did not have strong political views. The RRT was satisfied that he was of no interest to the Chinese authorities at the time of his departure from China in 1996, given his ability to leave China without difficulty on a passport issued in his own name, which he had since renewed, and his failure to apply for a protection visa in Australia until being placed in immigration detention in 2002. The RRT was also satisfied, on the basis of independent country information, that the applicant's activities in Australia did not lead to him now having a well founded fear of persecution if returned to China. The RRT concluded that it was not satisfied that Australia owed the applicant protection obligations, and refused the visa.

2. The application and annexed supporting affidavit do not set out clearly a reviewable basis for me to deal with the decision of the RRT.

I invited oral submissions from the applicant this afternoon and he has exercised that opportunity over approximately two hours.

3. Essentially, the applicant appeals to this Court to deal with the merits of the decision of the RRT. I have sought to explain to the applicant, as did Mr Reilly in his submissions, that the function of the Court is not to review the decision of the RRT on its merits. The applicant is clearly concerned that the RRT has made the wrong decision. It is open to him to put his case to the Minister in the form of an appeal to the Minister to make a more favourable decision. However, it is not the function of this Court to decide whether the decision of the RRT is the correct or preferable decision.

4. The applicant has made submissions at length about what he sees as unfairness in the way the RRT conducted the proceedings before it. Even if I could be persuaded that there were substance in those submissions it would not assist the applicant. It is clear from the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 that procedural unfairness is not a reviewable ground in the face of the privative clause in the Migration Act 1958 (Cth) ("the Migration Act").

5. The applicant asserts bias on the part of the RRT. He asserts that the presiding member had a predetermined view on the outcome of the case before the RRT. However, while the applicant has made assertions, he has not put anything before the Court to support those assertions. I see no justification to look behind the decision of the RRT to see if there is any basis for the allegation of bias. The applicant has also asserted that his experiences in detention and his activities as a leader of people in detention has exposed him to risk. That assertion was specifically rejected by the RRT. The RRT was in my view reasonably entitled to draw the conclusion it drew on that issue on the material before it.

6. The applicant has complained to the Commonwealth Ombudsman about his treatment in detention. I see no connection between the allegations of mistreatment in detention and the decision of the RRT. I earlier in these proceedings rejected an application for an adjournment. The applicant sought an adjournment on the basis that his complaint to the Ombudsman had not yet been resolved. I rejected that application on the basis that there was no logical connection between the Ombudsman complaint and the decision of the RRT.

7. In my assessment the decision of the RRT was properly based upon the material before it. The applicant has not persuaded me that there is any error of law apparent in the decision and reasons of the RRT. I adopt the submissions made on behalf of the Minister by Mr Reilly at paragraphs 5 to 8 of his written submissions:

The Convention nexus looks to the motivation of the persecutors: Ram v MIEA (1995) 57 FCR 565 (FC) as 568 per Burchett J; Applicant A v MIEA (1996-1997) 190 CLR 225 at 240-242 per Dawson J, at 258 per McHugh J, at 284 per Gummow J. The RRT's finding that the difficulties encountered by the applicant in running businesses in China was because officials were motivated by corruption rather than any perception as to the applicant's political views is a finding of fact. Similarly whether the disciplining that the applicant suffered at the People's Daily was sufficiently severe to constitute persecution is a matter of fact for the RRT: Prahastono v MIMA (1997) 77 FCR 260 (Hill J) at 268, 271; MIMIA v Kord (2002) 67 ALD 28 (FCA/FC) at [3] per Heerey J, [53-56] per Marshall and Dowsett JJ. There is no error of law in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

The application does not identify any error in the RRT's decision and appears to seek merits review. In any event, the RRT's decision is one to which the "privative clause" in s.474 of the Act applies. The validity of s.474 and applicability to it of the conditions stated in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 has now been confirmed in NAAV. NAAV also confirms that [ordinary Craig type] error of law or jurisditional error, as presumably intended to be pleaded here, will not suffice to establish reviewable error in the face of s.474: NAAV at [635-639], [644] per von Doussa J, Black CJ agreeing at [4], Beaumont J agreeing at [277].

On one view, the application alleges that the RRT's decision was not made in good faith, because it was influenced by the applicant's protests over conditions in immigration detention. It suffices to say that there is no evidence whatsoever for this allegation.

The applicant does not allege that the RRT's decision was made in breach of some inviolable statutory limitation. The remaining Hickman conditions are plainly satisfied.

8. In my view, even without the private clause in the Migration Act there is no basis to disturb the decision of the RRT in this matter. Taking the privative clause into account, the applicant has not advanced a basis on which the Court can interfere with the decision of the RRT. The Hickman provisos are satisfied. In particular, I am satisfied that the decision of RRT was a bona fide attempt to exercise its decision making powers. The applicant has not pointed to any fundamental breach of a jurisdictional prerequisite on the exercise of power by the RRT. Accordingly, I will dismiss the application.

9. On the question of costs, Mr Reilly has sought costs on behalf of the Minister. I am satisfied that costs should follow the event. I will therefore make an order for costs. My general practice is to fix an amount of costs. Mr Reilly has submitted that an appropriate amount would be $4,500. I agree that that would be an appropriate amount having regard to the amount of preparation that has been necessary in these proceedings, and the reasonable steps the Minister has taken to engage counsel for this hearing. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the amount of $4,500.

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


Date: 6 November 2002
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