FEDERAL COURT OF AUSTRALIA

NADG v Minister for Immigration & Multicultural Affairs FCA [2002] 357

NADG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1636 of 2001

WILCOX J

20 MARCH 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

WILCOX J:

1                     I understand that the applicant is very unhappy about the decision made by the Refugee Review Tribunal.  It is apparent from the findings of the Tribunal that her family has suffered persecution in earlier years.  However, the Tribunal was not satisfied that the applicant had suffered persecution because of her religion during recent years; in particular, since 1993 when, she told the Tribunal, she commenced to hold private religious meetings.

2                     The Tribunal's task was to determine whether the applicant had a well founded fear of persecution on the ground of religion if she should be returned to China.  The Tribunal found the applicant did not have a well founded fear of persecution on that ground.  It is apparent to me that the applicant believes she faces the prospect of persecution if she returns to China.  I have no reason to doubt her sincerity.  However, the Convention on Refugees requires that the fear not only be held but be soundly based.  This requires the finder of the facts to form an objective judgment as to whether there is indeed a real chance of persecution on the Convention ground relied upon by an applicant for refugee status. 

3                     In the present case the Tribunal examined material relating to the position of the Christians in China.  Some of this was recent material, including reports in 1999, 2000 and 2001.  On the basis of that material, and having regard to the evidence given by the applicant herself, the Tribunal reached a particular view of the facts.  The Tribunal member said he was not satisfied that there was any real prospect that the Chinese authorities would treat the applicant more harshly in the past than they had in recent years. 

4                     As I said earlier, I have no doubt that the applicant strongly disagrees with this assessment of the situation.  The difficulty, however, is that it is not the role of the Court to come to a view about the facts of a particular case.  The system set up under Australian law is that the Refugee Review Tribunal determines the facts of an applicant's case.  The Court may intervene only if it is satisfied that the Tribunal has fallen into a legal error.  Indeed, not all legal errors enliven the jurisdiction of the Court. 

5                     In the present case I do not see any error of law by the Tribunal.  There is scope for argument about the facts, but I refrain from expressing any view about them.  I do this because it is not the task of the Court.  I can only say I have been unable to detect any error of law.  None has been identified by the applicant.  She has appeared in person today but she informs me she has had pro bono, or perhaps panel, legal assistance and advice.  Apparently the lawyer who advised her was unable to identify any legal error.  Under these circumstances, I have no option other than to dismiss the application. 

6                     When the matter was before me for directions I pointed out to the applicant the limits of the Court’s powers and indicated to her that the usual situation was that costs were ordered against unsuccessful applicants.  Mr Smith, counsel for the Minister, seeks costs.  I feel there is no alternative other than to make an order that the applicant pay the respondent's costs.  Accordingly, the order that I make is that the application be dismissed with costs.

Associate:

Dated:              27 March 2002