Dao v Minister for Immigration and Multicultural Affairs

[2002] FCA 801

FEDERAL COURT OF AUSTRALIA

Dao v Minister for Immigration & Multicultural Affairs [2002] FCA 801

THAUN DAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 46 OF 2002

DOWSETT J
27 MAY 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 46 OF 2002

BETWEEN:	THAUN DAO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	27 MAY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The applicant pay the respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 46 OF 2002

BETWEEN:	THAUN DAO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	27 MAY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 10 April this year, the applicant filed a notice of appeal against a decision of Deputy President Breen in the Administrative Appeals Tribunal (the “AAT”).  The issue with which the Deputy President was concerned arose under the provisions of the Migration Act 1958 (Cth) (the “Migration Act”). The decision in question before the AAT was a decision pursuant to s 200 of the Migration Act that it was in the national interest that the applicant be declared an excluded person in accordance with subs 502(1) of the Act.

2. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) deals with appeals from decisions of that Tribunal. However, pursuant to subs 476(1), that provision no longer applies to decisions made under the Migration Act, at least for present purposes. However relief of the kind contemplated by s 39B of the Judiciary Act 1903 (Cth) is available, and counsel for the Minister has indicated his willingness to respond to the matter upon the basis that it is an application for such relief.

3. The applicant has provided particulars of his grounds of application as follows: 

   (1)My childhood was a period of fear.  I was separated from my family at the age of six, when my family managed to escape Vietnam.

   (2)After a long traumatic period I was finally reunited with them in Australia at the age of fourteen years.

   (3)It was very difficult for me when I arrived in Australia; I had to fit in to a society with different customs, a different language and a lot of freedom.

   (4)I found it quite difficult to assimilate, and this produced a lot of stress.  I found it easier to verbal and associate with people that were experiencing simular circumstances. 

   (5)It was at this time that I was introduced to drugs as a means of reducing stress and being expected by my peers.

   (6)I realise now that this was a big mistake, instead of relying on the love and support of my family and the community.  I chose to partake in drugs a choice that I’m both ashamed and remorseful for.

   (7)I would like to ask this Court to believe that I have changed and give me a chance to be united with my family and community so that I may rebuild my life as a responsible citizen of Australia.  The country my family call home.

4. These grounds may perhaps be more easily understood if one understands that the basis for the Minister’s decision was the fact that the applicant had been convicted of drug-related offences and sentenced to a substantial period of imprisonment. Clearly enough, the grounds of application do not raise any basis upon which relief could be granted pursuant to s 39B.

5. In the course of argument, I explained to the applicant that I was concerned only with procedural matters and not with the merits of the case. He responded by saying that he felt that only matters adverse to him had been taken into account before the Tribunal and that matters in his favour had been overlooked. However no particulars were given of this assertion, and it seems difficult to maintain in light of the Tribunal’s reasons. No basis has been advanced for granting relief of the kind contemplated by s 39B. The only focussed criticism of the decision below has related to the merits of the case rather than to the legality of the decision. In the circumstances I must dismiss the application.

6. I will order that the applicant pay the respondent’s costs of the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:  

Dated:             21 June 2002

The Applicant appeared In Person.
Counsel for the Respondent:	Mr P G Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 May 2002
Date of Judgment:	27 May 2002