Dong Ping Tan v Minister for Immigration & Ethnic Affairs

[1996] FCA 946

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 82 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

DONG PING TAN

Applicant

- and -

MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS and
  REFUGEE REVIEW TRIBUNAL

Respondents

EX TEMPORE REASONS FOR JUDGMENT

CORAM:    Mansfield J
PLACE:    Adelaide
DATE:     8 October 1996

The respondents in this matter by motion dated 26 September 1996 sought that this application be dismissed for want of prosecution.

The application was instituted on 7 November 1995 seeking review of a decision of the Refugee Review Tribunal given on 9 October 1995 determining that the applicant was not a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  The decision of the Tribunal affirmed the
decision of the primary decision-maker to refuse to grant the applicant a protection visa.

The history of the matter in this Court is as follows:

.On 1 December 1995 the first directions hearing took place.  The proceedings had not then been served, and the directions hearing was adjourned to 5 December 1995.

.On 5 December 1995 the proceedings had been served.  The directions hearing was then adjourned to 7 February 1996 without further directions.

.On 7 February 1996 the directions hearing was further adjourned to 26 March 1996, again without further directions.

.On 26 March 1996 directions were given including directions that the applicant file and serve particularised grounds of the application and any affidavits on which he intended to rely on or before 23 May 1996 and there were then consequential orders.  The directions hearing was further adjourned to 8 July 1996.  The applicant did not comply with that direction.

.On 8 July 1996 further directions were given including that the applicant should file and serve his particularised grounds and any affidavits on which he intended to rely on or before 5 August 1996, again with consequential orders and the directions hearing was adjourned to 17 September 1996.  On that occasion the Court noted specifically that the applicant was then advised that no further adjournment was likely to be granted.

.The matter came on for further directions earlier than 17 September 1996 pursuant to the liberty to apply previously given, because the applicant had not complied with the orders made or the directions given on 8 July 1996.

.On 16 August 1996 the Court gave further directions, again directing the applicant to file and serve particularised grounds and any affidavits on which he intended to rely by no later than 13 September 1996, with consequential procedural directions.  On that occasion, the Court formally warned the applicant that if he failed to comply with the directions of the Court his application may be struck out.  The applicant did not comply with the directions of the Court.

.On 16 September 1996 the respondent Minister instituted this motion supported by affidavit material setting out that history.

The motion came before me on 26 September 1996.  The applicant had filed no material, by affidavit or otherwise, to resist the motion and still had not filed any material pursuant to the directions previously given.  I was informed by his counsel that, on the instructions given to her by the applicant, he was still seeking some information from China which he thought might somehow help his case.

I adjourned the notice of motion to 8 October 1996 to give the applicant one final opportunity to respond to the motion, including the opportunity to file any affidavit material in response to the motion including explaining in a more formal way what he was doing, why he was doing it, and why he had not complied with the earlier directions of the Court.  In addition, I indicated that any documents which the applicant sought to file and serve late, pursuant to the directions previously given, should be placed before the Court prior to this matter coming on on that date.

The applicant has still not filed or served any particularised grounds of his application or any affidavits in support of it beyond the very brief affidavit filed initially in support of his application.  That is an affidavit sworn on 1 December 1995 which does no more than submit the decision and reasons of the Refugee Review Tribunal and assert that he has a well-founded fear of being persecuted by reason of his political opinion if he returns to China, and that he had been under detention twice by the China government because of his political activities.  They are matters which had been adverted to in the reasons for decision of the Tribunal.

He has also not filed any material in opposition to this motion.

The position is, therefore, that the applicant has failed persistently to comply with the directions of the Court, and that failure is not the subject of any explanation on his part to the Court other than the comments made by counsel appearing for him of her attempts to communicate with him and what he has apparently asserted to her.

I note that the recent Full Court decision in Dai Xing Yao v The Minister for Immigration and Ethnic Affairs & Anor (Black CJ, Davies and Sundberg JJ, unreported 18 September 1996) determined that decisions of the Refugee Review Tribunal are reviewable only under the provisions of Part 8 of the Migration Act 1958 as inserted into that Act by the Migration Reform Act 1992, effective from 1 September 1994, even though in that case both the application to be recognised as a refugee had been made and the application for review by the Refugee Review Tribunal had been lodged before the commencement of Part 8 of the Migration Act 1958.

Part 8 of that Act, as discussed in that decision, substantially confines the bases upon which the Court may review decisions of the Tribunal; see generally ss476 and 485 of that Act.

Whilst it is not other than one consideration in my approach to this motion, I note that the grounds of the application, so far as they are spelled out, to a significant extent relate only apparently to matters of fact, and to some extent otherwise assert some error of law, but not one which is identified or particularised in any detail. In terms of the merits of the application itself there is at present no material before the Court which would enable it to consider that, given the grounds upon which the Court may review the decisions of the Tribunal under Part 8 of the Migration Act 1958, the applicant has any real or substantial prospect of success. It is simply not possible to form any view one way or the other, but on a motion such as this it was incumbent upon the applicant, if he wished to assert a sound prospect of success as relevant to the fate of the motion, to adduce material to that effect. It has not been adduced.

Having regard to the applicant's persistent failure to comply with the directions of the Court, and the absence of any material before the Court to explain his non-compliance with those directions, or to provide the Court with any basis for being satisfied that a further time of any particular duration would enable him to proceed with this application, or to demonstrate anything as to his prospects of success on his application, it is my view that the motion should be granted.

Accordingly, I dismiss the application for want of prosecution under O30 r5 of the Federal Court Rules and I order that the applicant should pay to the respondent its costs of the application generally, including the costs of this motion.

I certify that this and the preceding     pages are a true copy of the Ex Tempore Reasons for Judgement of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant        :    Ms G Gardner

Solicitors for the Applicant     :    Legal Services
  Commission

Counsel for the Respondents      :    Mr G Gretsas

Solicitors for the Respondents    :    Australian Government
  Solicitor

Hearing Date  :    8 October 1996