Applicant S258 of 2003 v Refugee Review Tribunal

[2005] FCA 1755

FEDERAL COURT OF AUSTRALIA

Applicant S258 of 2003 v Refugee Review Tribunal [2005] FCA 1755

APPLICANT S258 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1062 of 2003

MOORE J
29 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1062 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S258 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

29 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi 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	NSD 1062 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S258 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	29 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order nisi originally filed in the High Court on 30 May 2003 which has been remitted to this Court.  The applicant is a Chinese national who arrived in Australia on 28 May 1998.  She applied for a protection visa on 10 June 1999.  The applicant's claim for a protection visa was founded on her membership of the Falun Gong movement.  The application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister").  An application to review that decision by the Refugee Review Tribunal ("the Tribunal") was unsuccessful.  The Tribunal affirmed the delegate of the Minister's decision on 16 February 2000.  The applicant then joined in what was perceived to be representative proceedings in the High Court which ultimately led to the judgment of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. Thereafter the applicant filed the applicant for an order nisi on 30 May 2003.

2. The Tribunal wrote to the applicant in December 1999 advising her that it was unable to make a favourable decision on the information she had provided and invited her to attend a hearing on 24 January 2000.  Though she indicated on 2 January 2000 she would attend, in fact she did not.  She now says she was advised by her then adviser not to attend the hearing.  In its reasons for decision, the Tribunal recounts a number of aspects of the applicant's claims about which it was uncertain.  Ultimately the Tribunal was unable to satisfy itself that she had been a member of the Falun Gong movement and was unable to satisfy itself that she held a well founded fear of persecution.

3. Nothing has been raised in the application filed on 30 May 2003 and the accompanying affidavit and a further affidavit of the applicant on 10 December 2004 identifying any jurisdictional error on the part of the Tribunal.  I am not satisfied there is any arguable jurisdictional error such as to justify the grant of an order nisi.  I dismiss the application for the order nisi and order that the applicant pay the Minister's costs fixed in the sum of $1500. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             13 December 2005

The Applicant appeared in person.
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	29 November 2005
Date of Judgment:	29 November 2005