NAVX v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 25 July 2003 and handed down on 20 August 2003, in which the Tribunal affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The applicant applied for the visa on 17 July 2002. The delegate's decision refusing the visa was made on 13 August 2002. The applicant applied to the Tribunal for review on 19 August 2002. On 12 June 2003, the Tribunal wrote to the applicant stating that it had considered the material before it in relation to his application and, importantly, also said: But [the Tribunal] is unable to make a decision in your favour on this information alone. 3 There was thereafter an invitation to attend a hearing at the Tribunal in the following terms: We now invite you … to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons. 4 The date and time of the hearing was given. There was then provided a document entitled "response to hearing invitation form". The letter then proceeded: Please read and complete the enclosed form carefully and: · tell us if you are coming to the hearing or not coming to the hearing · complete the "Witnesses" part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name · send us any new documents or written arguments you want the Tribunal to consider; Please note any documents or arguments you send should be in English or translated by a qualified translator. · answer all the other questions on the form and return the completed form and any new documents or written arguments by 30 June 2003. 5 A brochure was enclosed explaining what would happen on the day of the hearing. A reference was made to the Tribunal website. 6 On 19 June 2003, the relevant response to hearing invitation was completed on behalf of the applicant by a migration agent who indicated that the applicant did not want to come to a hearing and that consent was given to make a decision on the review without taking any further action. 7 At the hearing before me the applicant stated from the bar table that he was scared to go to the hearing in case he was arrested by the Immigration Department. No such claim was made at the time to the Tribunal in writing or otherwise. 8 The Tribunal's reasons dealt with the legislation and the Convention. The Tribunal then dealt with the claims and evidence before it. The applicant claimed to be a Chinese national and claimed to have a well-founded fear of persecution as a member of Falun Gong. The claims of the applicant are set out on pages 4 and 5 of the Tribunal's reasons. 9 Under heading "Findings and Reasons" the Tribunal explained why it was not, on the material before it, satisfied that Australia owed the applicant protection obligations. The Tribunal stated the following: …This is because the Tribunal finds the Applicant's claims unclear as well as very vague, and inconsistent with independent country information included in the delegate's decision. For example, his statement about a ten thousand person demonstration in October 1998 does not make sense. More importantly, there is no useful detail at all about his Falun Gong activities, about the visit to Beijing and the claimed resulting detention and mistreatment, or about his later detention, presumably sometime in early 2001. The Applicant's claim to have been detained for practising Falun Gong privately is at odds with independent country information about the ability of persons to do so and the Tribunal does not have the opportunity to test the claim. The Applicant claimed to have lost his job after being detained in early July 2001. Despite the Applicant's claims of detention he obtained a passport without any difficulty in January 2002 and left China legally some months later. These factors do not suggest that he was of adverse interest to the authorities. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention. 10 Section 65 of the Act statutorily demands that the Minister (and relevantly by reason of s 349 of the Act, the Tribunal) grant a protection visa if satisfied of all relevant criteria. Those criteria in relation to a protection visa include the matters contained in s 36 of the Act, which include the question as to whether Australia has protection obligations under the Convention to the claimant. If there is satisfaction of all relevant criteria a visa must be granted. However, if the Minister (here the Tribunal) is not satisfied the statute demands the refusal of the visa. 11 Here, on the material before the Tribunal, the Tribunal did not reach a state of satisfaction as to the existence of protection obligations. From reading the reasons of the Tribunal that is not a conclusion which was in any way irrational, capricious or which could otherwise be criticised as somehow unlawful. The fact is that the Tribunal did not have the relevant state of satisfaction. In these circumstances the statute demanded that the visa be refused and that the decision of the delegate be affirmed. 12 The Tribunal made perfectly plain to the applicant in its letter that it was unable to make a favourable decision in support of his claims without hearing from him. He did not attend. That was his choice. 13 In submissions before me the applicant traversed various factual matters about his position, which he could have put to the Tribunal. It is not my function sitting on review to find the facts in place of the Tribunal and to decide whether or not the applicant should be granted a visa. 14 There is no error, jurisdictional or otherwise, revealed by the terms of the decision of the Tribunal. 15 The application should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.