FEDERAL COURT OF AUSTRALIA

NBKG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 238

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – challenge to Tribunal’s characterisation of appellant’s evidence – whether irrationality in decision – no jurisdictional error – appeal dismissed

NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 766 cited

NBKG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1020 OF 2005

FRENCH, GYLES AND STONE JJ

14 NOVEMBER 2005

SYDNEY

On Appeal from a Single Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to 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.

On Appeal from a Single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a national of the Peoples Republic of China who came to Australia on 23 March 2001.  On 22 September 2004 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).  On 14 October 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the grant of a protection visa.  On the following day, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  After an oral hearing the Tribunal, on 26 November 2004, affirmed the decision of the delegate.

2                     The appellant made an application to this Court for judicial review of the Tribunal’s decision.  That application was heard by Moore J on 9 June 2005 and on that date his Honour dismissed the application – NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 766.  The appellant now appeals against that decision.

3                     The appellant’s case, in essence, was based upon a claim that since his arrival in Australia, which was on a Business Visitor Subclass 456 visa, a powerful local government official in China, whom he had reported for seeking a bribe from him, had sought revenge,  bribed other government officials to frame a case against him and had organised the support of other parties.

4                     At the hearing before the Tribunal the appellant also claimed that the Public Security Bureau (PSB) of the Peoples Republic of China was investigating him as a result of a report made by the vice-manager of the company for which he worked. The appellant said he did not know what the subject matter of that report was.

5                     The Tribunal was not satisfied that he faced arrest upon his return to China.  It considered his written and oral evidence to be ill-defined, vague and confused and was not satisfied that there was any relevant Convention nexus with respect to the claimed fear of arrest by the PSB.  In this Court the appellant seeks to appeal against the decision of Moore J and through that process to assert jurisdictional error on the part of the Tribunal on two grounds, neither of which were raised before Moore J.

6                     The first ground is that the Tribunal fell into jurisdictional error in its finding that the appellant did not in fact face arrest on his return to China.  The second is that the Tribunal fell into jurisdictional error in finding that it was unable to ascertain any Convention nexus in respect of the appellant’s claimed fear of arrest by the PSB.  Neither point having been raised below, the appellant required leave from this Court before it could entertain these new grounds of challenge to the Tribunal’s decision.  The respondent points to no prejudice, but simply opposes leave on the basis that the grounds have no merit.  We are content to deal with the grounds upon their merits as they stand.  Leave is granted.

7                     The submission made on behalf of the appellant in relation to what was called ‘the arrest issue’ set out a summary of the salient features of the appellant’s oral evidence as they were reported in the Tribunal’s reasons.  These were:

(a)        There was a dispute between the appellant and the vice-manager of the development company for which the appellant worked.

(b)        The vice-manager and his contacts reported the appellant to the PSB and ‘put dirt’ on him.  The reports made by the vice-manager to the PSB involved false material about the appellant.  The appellant did not know the content of the false material.

(c)        The reason the vice-manager reported the appellant to the PSB was because the vice-manager wished to get more profit and to take power back in the company.

(d)        As a result of the vice-manager’s actions in reporting the appellant to the PSB, the PSB commenced investigating the appellant.  Among other things, the appellant’s home had been under surveillance from the PSB.

(e)        If the appellant returned to China the PSB would arrest and detain him.

The appellant contends that, having regard to the above summary, it was not open to the Tribunal to find, as it did, that his oral and written evidence as to the circumstances and nature of the claim that he faced arrest were ‘ill-defined, vague and confused’.

8                     In dealing with the summary of the appellant’s claims the Tribunal said (at p 7):

‘The Tribunal put to the Applicant that some of what he was stating in the hearing was not consistent with his statement of claims, as set out in his protection visa application.  In particular, in his protection visa application the Applicant stated that the trouble began in May 2004, although in 2002 his wife had heard some things were happening.  Yet in the hearing the Applicant stated that difficulties arose in April 2001, shortly after his departure from China.  The Applicant stated that he only learned that these things started in 2002 when his wife had told him but they had started in 2001, and for this reason he had not applied for a protection visa earlier because he was only aware of these events later on.’

9                     The appellant seeks to characterise the Tribunal’s findings as operating at a level of irrationality or illogicality that can be characterised as jurisdictional error.  In ouropinion it has not been shown that the findings made by the Tribunal, which were by way of  characterisation of the evidence, were not open to it. Although it might be that there would be grounds for disagreement with that characterisation, that disagreement could not be reflected in any judicial interference with the Tribunal’s determination. The level of so-called irrationality necessary to demonstrate some underlying jurisdictional error or failure to carry out the task of review, which is the Tribunal’s statutory duty, is a high level indeed and it is not, in ouropinion, met in this case.

10                  Under the second ground, the appellant points to the Tribunal’s finding that it was unable to ascertain any Convention nexus in respect of his claimed fear of arrest by the PSB.  The Tribunal also observed that neither the appellant nor his adviser at the hearing were able to suggest how the harm feared by the appellant on returning to China related in any way to a Convention reason. The Tribunal said in its reasons that it gave the appellant a week to make any further submissions.  No submissions were made.

11                  The appellant points to his claims in his original application for a protection visa.  The first was that a powerful local government officer had asked him for a bribe and he had refused to pay it and had reported the matter to another officer.  The second was that the person who approached the appellant for a bribe had then sought to take revenge upon him.  It was submitted that there were a number of cases which had held that a person’s opposition to corruption by public officials can be a manifestation of a political opinion and that persecution suffered by a person as a result of such opposition can be persecution for reason of political opinion.

12                  The question whether an imputed political opinion can be inferred from such a claim is ultimately a matter of fact for the Tribunal.  The Tribunal in this case was unable to discern any imputed political opinion which would attract an apprehended fear of persecution.  That was a matter of fact upon which it was open to it to draw the conclusions it did.  It specifically drew the problem to the attention of the appellant and gave him time to make further submissions, which were not forthcoming.  In the circumstances no basis is shown in our opinion for interfering with the decision of the Tribunal.

13                  While we have allowed the new grounds of appeal to be raised, they are without merit and wewould dismiss the appeal with costs.

Associate:

Dated:              2 December 2005