FEDERAL COURT OF AUSTRALIA

NBHH v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 1198

NBHH v MINISTER FOR IMMIGRATION & MULTICULTURAL &

INDIGENOUS AFFAIRS

NSD 1029 of 2005

LINDGREN J

19 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The Refugee Review Tribunal be joined as second respondent to the appeal.

2.         The appeal be dismissed.

3.         The appellant pay the first respondent’s costs.

4.         I fix the first respondent’s costs referred to in order 3 at $1500. 

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 6 June 2005 (NBHH v Minister for Immigration [2005] FMCA 838).  That Court dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 27 April 2004 and handed down on 19 May 2004.  The Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, ‘the Delegate’ and ‘the Minister’) made on 19 December 2003, refusing the appellant’s application for a protection visa. 

2                     When the appeal was called on for hearing this morning, the appellant did not appear.  He appeared before me on 6 July 2005 when the appeal was fixed for hearing today at 10.15am. 

3                     In the appellant’s notice of appeal, he stated a certain address as his address, and in an affidavit sworn 22 June 2005 he again gave the same address as his address.

4                     On 16 August 2005, the solicitor for the respondent Minister wrote to the appellant at that same address enclosing by way of service an outline of the Minister’s submission.

5                     I am satisfied that the appellant knew that the appeal was fixed for hearing today.  I am proceeding with the hearing, notwithstanding his absence, pursuant to O 52 r 38A(1)(d) of the Federal Court Rules.

6                     Prior to the hearing, I read the reasons for decision of the Tribunal and those of the learned Federal Magistrate.  In the appellant’s notice of appeal to this Court, the appellant propounds the following grounds:

‘2.        The Judge did not take into account the explanation provided by me at my hearing and refused my application.

3.         My application should be returned to the RRT for reconsideration because there is jurisdiction mistake when the Tribunal officer considered my application. 

4.         I believe that I meet the criterion for refugee status.’

7                     As the solicitor for the respondent has observed in his written submissions, which I have found helpful:

‘The grounds of appeal are unparticularised and, therefore, unhelpful to both the respondent and the Court.’

8                     There is no transcript before me of the hearing before the Tribunal or the FMCA.  On the face of their respective reasons, each did take into account what the appellant said.  The first ground of appeal is not made out.  The other two grounds are not proper grounds of appeal at all, or, at least, in the case of the second, it is so devoid of particulars as to convey no significance.

9                     I do not think it necessary to set out the background facts except to refer to them briefly.  The appellant is a Chinese citizen who entered Australia on 30 November 2003, travelling on a visitor’s visa.  His claim was a fear of persecution because he was a practitioner of Falun Gong.  His application for the visa was accompanied by two typewritten statements, which were expanded upon at the hearing before the Tribunal.  The Tribunal member did not believe the appellant’s claims, and gave reasons for not believing them.

10                  Another claim made was that the appellant had been and would be persecuted because of his activities as a journalist reporting on Chinese government policy towards Falun Gong, but again the Member did not believe him. 

11                  Assessment of credit is a matter for the Tribunal.  It is not the function of the FMCA or this Court to make that assessment. 

12                  The Federal Magistrate also dealt with an issue arising under s 424A of the Migration Act 1958 (Cth).  Although the issue was not raised by the appellant, the Federal Magistrate considered whether the use made by the Tribunal of the appellant's visa application and supporting statements gave rise to any non-compliance with s 424A(1).  The Federal Magistrate thought, and I agree with him, that by reason of the appellant’s having stated in his application to the Tribunal:  ‘Please refer to my statement at DIMIA’, the appellant was giving to the Tribunal, for the purpose of his application to it, the information contained in the statements which were attached to his visa application. 

13                  Accordingly, there was no non-compliance by the Tribunal with s 424A(1) because of the exception provided for in s 424A(3)(b). 

14                  For the above reasons the appeal should be dismissed with costs.  The Court orders that:

1.         The Refugee Review Tribunal be joined as second respondent to the appeal.

2.         The appeal be dismissed.

3.         The appellant pay the first respondent’s costs.

[At this point of the reasons for judgment, the interpreter having left the Court, the appellant arrived.  Fortunately, the interpreter had not left the precincts of the Court and was able to return.]

15                  I set aside orders 1, 2 and 3 just made.

[The appellant was invited to make submissions in support of his appeal.]

16                  The appellant read out some material which he had prepared.  The gravamen of it was that the explanation which he had previously given had not been listened to.  There is no transcript to indicate that any particular matter which was stated by the appellant before either the Tribunal or the FMCA was not taken into account. It seems to me that the real grievance which the appellant had or has is that what he said, although listened to, was not believed. 

17                  There is no reason to vary any part of the reasons which I gave prior to the arrival of the appellant, and I adopt them.  For all the above reasons the appeal should be dismissed with costs.

18                  I will again make the orders which I set aside a short while ago.  In addition, I fix the first respondent’s costs referred to in order 3 at $1500.

Associate:

Dated:              31 August 2005