NBKE v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate dated 15 June 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 8 November 2004 and handed down on 1 December 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Citizenship to refuse to grant a protection visa to the appellant. Background 2 The appellant is a thirty‑two year old woman who was born in the Peoples Republic of China ('China'). In her application for a protection visa, the appellant included, as an annexure, a typed document which stated the grounds upon which she claimed a protection visa. The grounds were that the appellant was a member of an underground Christian group called the 'Shouters' in China, whose members had been arrested and 'tormented cruelly' by the Chinese authorities. The appellant became concerned about her safety and left China in March 2004. The appellant then travelled to Indonesia where she suffered discrimination because of her Chinese ethnicity. The appellant arrived in Australia on 24 April 2004 on an Indonesian passport. The appellant applied for a protection visa on 20 May 2004 which was refused on 17 June 2004. On 20 July 2004, the appellant applied to the Tribunal for a review of that decision. The Tribunal 3 The appellant attended the scheduled Tribunal hearing on 2 November 2004 and gave oral evidence. Before the Tribunal the appellant stated that she was not an Indonesian national and that, in effect, no reliance could be placed on the information contained in her Indonesian passport, which she presented on arrival in Australia, because the passport had been obtained falsely in Indonesia by a people smuggler, based on a bogus marriage. She said that she remained a Chinese citizen. 4 On 9 November 2004, the Tribunal notified the appellant that it had made its decision and invited the appellant to the handing down on 1 December 2004. On 15 November 2004, after the Tribunal decision was signed but before it was handed down, the Tribunal received a statutory declaration made by the appellant. 5 The statutory declaration stated as follows: 'Because of my religious activities, I suffered persecution from the Chinese government, and I had to leave China to come to Australia for protection. The whole trip was arranged by person smugglers. When I passed by Indonesia, in order to make me arrive in Australia successfully, without discussing with me, without my approval, they arranged me to get married falsely with an Indonesian man. The smuggler told me that it was the only way I could do, otherwise, I would have to return to China where I would have to face the cruel persecution from the Chinese Communist Party. … I took a bus from Shenzhen to leave China on 7th March 2004. On 8th March 2004, I passed Hong Kong custom. I took a plan [sic] to arrive in Jakarta in the evening. I saw the smuggler at the custom; he took my passport and took me out of the custom. He then took me to his home. On 9th March 2004, I became to know that I had to take photo with an Indonesian man whom I had not seen before nor talked. After taking photo, he left. The Smuggler took me home. About one week later, the Smuggler took me to sign my name. I saw that Indonesian man; he signed his name together with me and left. I returned to the Smuggler's home. On 26th March 2004, the Smuggler took an Indonesian passport and air ticket to me and asked me to follow a lady to Singapore and Malaysia for sightseeing. At night on 28th March 2004, we returned to Jakarta, the Smuggler picked us up and took away my passport. In the evening of 22nd April 2004, the Smuggler told me that the next day afternoon; I would take plan [sic] to Australia. I saw that Indonesian man outside the airport. The Smuggler told me that the man would go to Australia with me, and then he would return to Indonesia.' 6 The Tribunal said 'in light of [the appellant] holding a valid Indonesian passport, the Tribunal has assessed her claims in relation to Indonesia'. In coming to that view, the Tribunal relied upon information recorded in that passport that the appellant had married an Indonesian citizen on 11 March 2004, that she divested herself of her Chinese citizenship and gained Indonesian citizenship on 18 March 2004. After carrying out an extensive review of country information, the Tribunal found that as an Indonesian national of Chinese descent, the appellant did not have a well‑founded fear of persecution. 7 The Tribunal recognised in its reasons, that the appellant claimed that she was not an Indonesian national and that the Indonesian passport contained false information. At one point in its reasons the Tribunal said: 'The Tribunal accepts that the applicant had no idea that the actions of others in acquiring for her an Indonesian passport has meant that she has effectively put herself under the protection of the Indonesian government. The Tribunal accepts that the applicant has no relationship to Indonesia, has no friends or acquaintances there, and does not speak the language. However, the Tribunal's role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. Any consideration of her circumstances on humanitarian grounds is a matter solely within the Minister's discretion.'