Applicant S1176 of 2003 v Refugee Review Tribunal

[2003] FCA 1615

FEDERAL COURT OF AUSTRALIA

Applicant S1176 of 2003 v Refugee Review Tribunal [2003] FCA 1615

APPLICANT S1176 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N1000 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1000 OF 2003

BETWEEN:

APPLICANT S1176 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the second respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1000 OF 2003

BETWEEN:

APPLICANT S1176 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 28 September 1999.  On 16 December 1999, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth). On 7 February 2000, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 3 March 2000, the applicant applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 3 August 2000, the Tribunal affirmed the decision not to grant a protection visa.

2. On 20 May 2003, the applicant lodged an application with the High Court.  At that stage he was represented by Adrian Joel & Co, solicitors.  The proceeding was remitted by the High Court to this Court.  On 27 October 2003, I directed the applicant to file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which he intended to rely at the hearing.  No such documents have been filed.

3. When the matter was called today, there was no appearance for the applicant.  The explanation for that non-appearance is clear.  The Minister relies on evidence that indicates that the applicant has departed Australia.  In the circumstances, the Minister asks that the matter be dismissed pursuant to O 10 r 7(2) of the Federal Court Rules. 

4. I have considered the reasons of the Tribunal for affirming the delegate’s decision.  The Tribunal recorded that the applicant claimed to be a member of Phalun Gong and a member of the Chinese Communist Party.  The Tribunal considered that the applicant’s evidence was not credible and that the applicant was not a credible witness.  The Tribunal concluded that the applicant had made up certain of the evidence that he gave in order to substantiate his application of a protection visa. 

5. In the circumstances, I consider that it is appropriate to accede to the Minister’s application. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             22 January 2004

Counsel for the Applicant:	No appearance
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003