Chen v Minister for Immigration and

[1999] FCA 364

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and
Multicultural Affairs [1999] FCA 364

QI WEN CHEN v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

NG 1168 OF 1998

EMMETT J
29 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1168 OF 1998

BETWEEN:	QI WEN CHEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	29 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the Respondent’s costs of the proceedings.

3.The Respondent inform the Applicant in writing as soon as practicable of these orders and of the provisions of Order 35 Rule 7 of the Federal Court Rules.

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	NG 1168 OF 1998

BETWEEN:	QI WEN CHEN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	29 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is an application for review of a decision of the Refugee Review Tribunal.  The matter first came before me on 11 December 1998 when the applicant appeared in person.  On that day I directed that the applicant file and serve any affidavits intended to be relied upon no later than 26 February 1999 and I fixed the matter for hearing at 9.30 am on 29 March 1999.

2. When the matter was called on today, there was no appearance for the applicant.  The solicitor for the respondent, therefore, invited me either to dismiss the application pursuant to Order 32, rule 2(1)(c) or, alternatively, if I were so disposed, under Order 32 rule 2(1)(d).  Order 32 relevantly provides as follows:

   “2(1)If, when a proceeding is called on for trial, any party is absent, the Court may:

   ………………………………

   (c)if the party absent is an applicant ……….., dismiss the action or the cross claim; or

   (d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.”

   I also have two other options under paragraphs (a) and (b), either to order that the trial not be had or to adjourn the trial.  

3. I have read the reasons of the Refugee Review Tribunal which are the subject of the application for review.  The reasons indicate that, although the applicant was given the opportunity of appearing at a hearing before the Tribunal, he did not avail himself of that opportunity.  In the circumstances, I consider that it is appropriate that I proceed with the trial and express my view of the Tribunal’s reasons for decision.

4. The applicant arrived in Australia on 30 January 1997.  He is a citizen of the People’s Republic of China.  On 24 February 1997, he lodged an application for a protection visa.  On 13 August 1997, a delegate of the Minister refused to grant a protection visa and on 17 September 1997, the applicant sought review of that decision.  On 30 September 1998, the Tribunal affirmed the decision not to grant a protection visa.

5. In its reasons, the Tribunal indicated that it was not satisfied that the applicant’s claims are genuine.  The Tribunal found that the detailed written submission which the applicant provided to the Tribunal was a substantial embellishment of the evidence, oral and written, which had previously been given.  Some of his claims contradicted earlier claims that he had made.  The Tribunal observed that the applicant had denied the Tribunal the opportunity to question him further about how he managed to live comfortably and run successful businesses in Hainan and Guangdong, despite his previous alleged pro-democracy activities.

6. The Tribunal said that it had wanted to question the applicant about his family and their current well being, about the applicant’s house church activities in Guangdong, about his alleged arrest, detention and escape, about how he was affected by the birth control policy of the Chinese government and about the glaring inconsistencies in his various submissions and in his oral evidence before the department.

7. The inconsistencies, which the Tribunal noted in its reasons, were considered significant and went to the root of his claims.  The Tribunal noted that the applicant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it but had not taken the opportunity to appear before the Tribunal to provide oral evidence.  The applicant did not give the Tribunal the opportunity to explore important aspects of his claims with him.

8. The Tribunal considered, therefore, that a number of relevant questions were left unanswered.  Accordingly, the Tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant a protection visa. 

9. The application before the Court for an order of review does not give any particulars of the grounds relied on.  The grounds specified were as follows:

   (1)that the procedures required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose for making the decision were not observed;

   (2)that the decision involved errors of law;

   (3)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

10. Further particulars of (3) were then specified as follows:

    (a)irrelevant considerations were taken into account in the exercise of the power;

    (b)there was a failure to take into account relevant considerations;

    (c)the decision involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

    (d)the decision involved an exercise of power in such a way that the result of the exercise of the power is uncertain;

    (e)the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

11. It is fairly apparent that the grounds were adopted from another application.  There is no indication of any specific complaint that has anything to do with the case in question.  Indeed, the particular grounds directed to ground (3) are in some instances expressly ruled out by the operation of section 476(3) of the Migration Act. 

12. As I have said, I have read the reasons of the Tribunal for the decision which it made.  There is nothing on the face of those reasons which appears to me to give rise to any of the grounds relied on in the application.  Accordingly, in the absence of any further submission from the applicant, I consider that the applicant should be dismissed.

13. However, shortly after the hearing began this morning, a document was delivered to Court purporting to be a “Sick Leave Certificate” by somebody described as “Chinese doctor J.Y. Wu”.  The certificate had at its foot “Chinese Therapy and Acupuncture Centre”.  The document said:

    “I certify that Chen Qi Wen suffering from headaches and fever. [sic]  He is recommended two day’s sick leave from 29 March 1999 to 30 March 1999 inclusive.”

14. The document is a photocopy and is probably a facsimile communication.  There is nothing to indicate in it that the applicant was unable to attend Court.  In the circumstances, I do not propose to have any regard to the document.  Accordingly, I propose to order that the application be dismissed with costs.

15. Order 35 rule 7(2)(a) provides:

    “(2)The Court […] may, if it thinks fit, vary or set aside a judgment or order after the order has been entered where:

    (a)the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order.”

    In the circumstances, I order that the application be dismissed.  I order that the applicant pay the respondent’s costs of the proceeding.  I order the respondent to inform the applicant in writing as soon as practicable of these orders and I direct the respondent to notify the applicant of the provisions of Order 35 rule 7.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             29 March 1999

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 March 1999
Date of Judgment:	29 March 1999