FEDERAL COURT OF AUSTRALIA

NBAB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1410

NBAB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N54 OF 2004

EMMETT J

10 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 30 January 2003.  On 10 February 2003 he lodged an application for a protection class XA visa under the Migration Act 1958 (Cth) (‘the Act’).  On 16 April 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, (‘the Minister’) refused to grant a protection visa.  On 15 May 2003 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.  On 24 November 2003 the Tribunal affirmed the decision not to grant a protection visa.

2                     On 19 January 2004 the applicant filed an application expressed to be made under s 39B of the Judiciary Act 1903 (Cth).  The details of the claim were stated in the application in the following terms:

‘(1)      The Refugee Review Tribunal (RRT) found that the applicant had failed to satisfy the basic requirement for the grant of the visa.  In making this finding, RRT ignored parts of the applicant’s claims in the statement attached to her (sic) application for the relevant visa submitted.  In doing so, RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding the applicant is not entitled to the relevant visa and give rise to jurisdictional error.

 (2)      ‘The above jurisdictional error affected the exercise of power of RRT.’

3                     There was no claim for relief in the application.  The application was not supported by either a statement of claim or an affidavit as required by the rules.  When the matter was called on for hearing today the applicant sought an adjournment.  He said that he wanted to obtain free legal advice concerning his application.  In response to my questions he indicated that he had had advice from a migration agent in connection with his application to the Tribunal and in connection with the preparation of his application to this Court.

4                     He also said that he required time to get some documents from China.  The documents were said to relate to matters going to the substance of the grounds upon which he claimed to be entitled to a protection visa.  I shall say something about that in a moment.  Having indicated to the applicant that I was not disposed to grant an adjournment, I invited him to make submissions as to why he should be entitled to relief in the Court.  He was unable to put forward any submission.  The decision of the Tribunal of 24 November 2003 is on its face a decision of an administrative character made under the Act.

5                     Although it is not stated in the application filed on 19 January 2004, I am disposed to treat the application as a claim for relief in respect of the Tribunal’s decision.  However, since it is a decision of an administrative character on its face made under the Act, it would be a privative clause decision within the meaning of s 474.  Accordingly, under s 474(1) the Tribunal’s decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any Court, and is not subject to prohibition, mandamus, injunction, declaration or search of error in any court on any account.

6                     Notwithstanding that provision, if the decision was affected by jurisdictional error it would not be a decision under the Act.  The claim made in the application appears to be one that the decision was not made under the Act because it involved jurisdictional error.  I have read the reasons for the Tribunal’s decision.  There is no error on the face of those reasons that I can perceive.  Specifically, the applicant asserts that the Tribunal ignored parts of his claims.  The applicant’s claims were set out in a statement attached to his original application for a protection visa.

7                     In his application to the Tribunal, in answer to the question as to why he considered himself to be a refugee he said, ‘Please see my file at DIMIA’.  In its reasons the Tribunal set out the claims in the statement attached to the application for protection visa.  Further, the Tribunal invited the applicant to attend a hearing on 3 December 2003.  On 11 November 2003, a facsimile communication was received advising the Tribunal that the applicant wished a decision to be made on the papers, as he did not wish to attend the hearing.

8                     After setting out the claims made by the applicant, the Tribunal observed that there was nothing to support those claims other than the unsubstantiated assertions.  The Tribunal observed that there was insufficient information to enable it to be satisfied that the applicant is a Christian, as he claims.  The Tribunal observed that because the applicant did not attend the hearing, it was unable to ascertain the level of his commitment to the Christian faith, what his denomination is or to test his claims.

9                     The Tribunal was therefore unable to find that the applicant is a Christian as he claimed and was therefore unable to be satisfied that he had been of adverse interest to authorities in China.  In reaching that conclusion the Tribunal had regard to independent country information summarised in its reasons.  One of the claims that the applicant made was that the church of his religious group was taken over by government authorities.  In asking for an adjournment, he said that he wanted to get documents from China that would corroborate his assertion that his church had been closed down.

10                  Such documents, of course, would not go to any matter that would give rise to any power on the part of this Court to interfere with the decision of the Tribunal in the absence of any other jurisdictional error on the part of the Tribunal.  The papers before the Tribunal also included an acknowledgment signed by the applicant that he had been advised by his migration agent after initial consultation that he had little chance of success in his protection visa application.  I have had regard to that acknowledgment and to the failure of the applicant to take the opportunity of appearing before the Tribunal into account in refusing an adjournment.

11                  I do not consider that any ground has been established upon which a conclusion could be based that the Tribunal’s decision is anything other than a decision of an administrative character made under the Act.  It follows that s 474(1) applies to it and the application should be dismissed.

Associate:

Dated:              1 November 2004